- Board chair: "The board has real work to do and little time to entertain this adventure in never-never land."
- It's unlikely a judge would force the supervisors and the company to comply.
Maricopa County, Arizona, supervisors and Dominion Voting Systems refused to produce additional election material on Monday in response to new subpoenas filed by the Arizona Senate in the state's contentious, ongoing audit of the 2020 presidential election.
The subpoenas, issued July 26 by Republican Senate leaders, demanded that representatives for the county Board of Supervisors and Dominion appear and produce the materials by 1 p.m. Monday at the state Capitol.
Instead, county officials and a Dominion attorney sent Senate President Karen Fann a letter outlining why they will not comply. However, county officials said they will work with the Senate to provide some documents sought via a public-records request.
After three months, the audit of Arizona's 2020 election results has surfaced no evidence of widespread voter fraud, even as former president Donald Trump and his supporters say otherwise and misinformation circulates on social media.
Fann, in a statement, said she saw some progress in the Senate's efforts to get county cooperation, but took a wait-and-see stance on the refusal to produce subpoenaed materials.
"It is unfortunate the noncompliance by the County and Dominion continues to delay the results and breeds distrust," she said.
The subpoenas demanded routers, machine passwords and voter registration records from the county, and the same machine passwords from Dominion.
Instead of complying, attorneys for Dominion and the supervisors sent letters to the Senate. The supervisors said they have given what they are legally and responsibly able to provide, and Dominion said that they don't legally have to provide anything, given they are a public company.
Much of what the Senate demanded it had already asked for in the initial subpoenas that made the audit possible — the county provided everything but the routers in response to those subpoenas and stated again Monday it won't provide the routers for security concerns. Additionally, the county said it doesn't have any additional passwords to the machines.
Board Chairman Jack Sellers lambasted the Senate's ongoing audit of the county's November 2020 election and the inexperienced contractors they hired to do the work, saying that if they "haven't figured out that the election in Maricopa County was free, fair and accurate yet, I'm not sure you ever will."
"The board has real work to do and little time to entertain this adventure in never-never land," Sellers said in a prepared statement.
New contempt vote highly unlikely
Several Republican senators offered their own paths forward.
Sen. Michelle Ugenti-Rita, chairwoman of the Senate Elections Committee, said in a statement that she would vote to hold the supervisors in contempt for non-compliance, as she did earlier this year when the county refused to cooperate.
However, she acknowledged a contempt finding "is not an option" as the Senate must be in session to do so and there is scant possibility of that happening before January 2022.
Ugenti-Rita, R-Scottsdale and a candidate for the GOP nomination for Secretary of State, did not respond to a question about why she would back a contempt vote now, given she no longer supports the audit, which she says has been "botched."
Sen. Paul Boyer, R-Glendale, applauded the supervisors' reply, adding, "I couldn't agree more with Jack Sellers. Elected officials do have a responsibility to tell the truth to their constituents, even if some of them will never believe it."
On the other side of the spectrum, Sen. Wendy Rogers, R-Flagstaff, said the five supervisors should be arrested and locked up in solitary confinement. She made several Twitter posts denouncing the county's response.
When the supervisors initially refused last winter to respond to subpoenas for the county's ballots, voting machines and other election information, the Senate called a vote to try to hold the supervisors in contempt — the punishment for which is jail. That vote failed in February.
And it's unlikely a judge would force the supervisors and the company to comply.
While Maricopa County Superior Court Judge Timothy Thomason ruled in February that the initial subpoenas to the county were valid, he did not order the county to produce the materials. Thomason left enforcement of the subpoenas up to the Senate — which wasn't required because the county complied with the subpoenas shortly after the court ruling.
Supervisor Bill Gates noted that the Senate doesn't have the votes to hold them in contempt, and the judge didn't order them to comply. He said that the subpoenas are not a "serious" request, and called it "political theater."
What the latest subpoenas demanded
Fann and Senate Judiciary Chairman Warren Petersen, R-Gilbert, issued the latest subpoenas after the initial portion of the audit, which began in April, wrapped up at the state fairgrounds last week.
While the ballot review is now complete, the Senate's contractors planned to also inspect the county's ballot tabulators and voter registration database. The contractors told Fann and Petersen at a hearing in July that they need more information from the county to complete the election review.
Fann and Petersen's latest subpoena demanded:
- Information about data breaches to the county's election systems.
- Ballot envelopes with voter signatures, or images of the envelopes.
- Information about changes to the county's voter records.
- Routers and network data, some of which the senators had requested in original subpoenas to the county this past winter.
- Usernames, passwords, tokens and pins to the ballot tabulation machines the county rents from Dominion, including all that would provide administrative access. This was also a repeat from the original subpoenas.
The subpoena to Dominion made the same request for usernames, passwords, tokens and pins to their machines.
What the county and Dominion say they won't provide
The supervisors sent the letter after meeting Monday morning in a closed-door session to discuss how to respond to the subpoena, among other topics.
County leaders flatly refused to provide routers that were requested, which they have done since they were first requested as part of earlier subpoenas.
"Specifically, providing these routers puts sensitive, confidential data belonging to Maricopa County citizens — including Social Security numbers and protected health information — at risk. Further, the Maricopa County Sheriff has explained that the production of the routers would render MCSO internal law enforcement communication infrastructure extremely vulnerable to hackers,” wrote Thomas Liddy, civil division chief for the County Attorney's Office.
The Senate's contractors say the routers are needed to check whether the county's voting machines were connected to the internet during the election. But county officials say the auditors already received the information and machines needed to perform that check.
The county transfers election results from vote centers using flash drives, and the server that stores election results is not connected to the internet — an independent audit commissioned by the county in February proved this.
It's unclear why Senate leaders still are demanding the passwords and tokens to the county's ballot tabulating machines even though they gave back the machines on July 29, after getting them under the initial subpoenas.
Dominion said the subpoena "violates (the company's) constitutional rights and ... exceeds the Legislature’s constitutional and statutory authority."
More on the audit:Maricopa County's 2.1M ballots returned home
Supervisors attempted to block original subpoenas
The supervisors sued over the Senate's original subpoenas in January, leading to the February court ruling that prompted county leaders to turn over all 2.1 million ballots, voting machines and other election materials.
Maricopa County Superior Court Judge Timothy Thomason ruled in February that the Legislature — even a small subset of the Legislature such as the Senate president and a committee chairperson — has sweeping powers to issue subpoenas for the purpose of studying the state's elections.
Fann has always said the audit is meant to inform the Legislature on how to improve elections.
The county supervisors, four of the five of whom are Republicans, have pushed back against the election review by inexperienced contractors who aren't accredited to handle voting machines.
Cyber Ninjas, a small cyber security firm out of Florida, had no background auditing elections.
GOP Senate leaders agreed to pay Cyber Ninjas $150,000 for the audit, which experts said was far less than such an undertaking would typically cost. A list of donors contributing more than $5.6 million for the work was released July 29, more than three months into the audit. Organizations led by "Stop the Steal" advocates and allies of Trump have bankrolled the effort.
Sellers and other supervisors have become increasingly outspoken about what they say is a lack of integrity in the audit and have emphasized the confidence they have in the county's election results.
While Senate leaders have said that the audit has gone months past its original end date of May 14 because of county obstruction, Gates said on Monday that was not the case — the county has provided everything it can provide, he said, and the rest of it has a "rational basis for not turning over."
Sellers said the supervisors hope they can eventually get past these "distractions," because they have other important work to do.
Reach the reporter at [email protected] or at 602-444-8763. Follow her on Twitter @JenAFifield.
