PHOENIX - A judge ruled Friday that the Arizona Senate can get access to 2.1 million ballots and election equipment from Arizona’s most populous county so it can audit results of the 2020 election that saw Democrat Joe Biden win in the state.
Maricopa County Superior Court Judge Timothy Thomason’s decision comes after a protracted battle between the Republican-controlled state Senate and the GOP-dominated Maricopa County board over subpoenas issued by the Senate.
The five-member Board of Supervisors argued that the ballots were secret, that the Legislature had no right to access them and that the subpoenas issued by Senate President Karen Fann were for an illegitimate purpose, among other arguments.
The Senate’s lawyers contended that the constitution gives the Legislature the role of maintaining the purity of elections and make sure voter integrity is protected, that the subpoenas were legal and a proper use of legislative power.
In his ruling, Thomason agreed with the Senate on all those arguments, saying the subpoenas "are legal and enforceable."
"There is no question that the Senators have the power to issue legislative subpoenas," Thomason wrote. "The Subpoenas comply with the statutory requirements for legislative subpoenas. The Senate also has broad constitutional power to oversee elections.
"The Arizona legislature clearly has the power to investigate and examine election reform matters," the ruling says. "The Subpoenas also do not violate separation of powers principles. Production of the subpoenaed materials would not violate confidentiality laws."
The ruling appears to end a bitter fight that has divided two elected Republican-controlled bodies who became embroiled in a battle prompted by then-President Donald Trump’s loss in Arizona.
Board Chairman Jack Sellers said the ruling "brings clarity to whether Senate subpoenas apply to ballots that, per state law, must be kept private following an election; as well as the many other documents and equipment demanded.
"We respect his legal opinion and will immediately start working to provide the Arizona Senate with the ballots and other materials," Sellers said in a statement after meeting with county lawyers. "These items are in addition to the more than 11GB of data already provided. We hope senators will show the same respect and care we have for the 2.1 million private ballots and use them in service of their legislative duties."
Fann has said she wants the audit to prove one way or another whether the victory of President Joe Biden was legitimate. Court challenges in Arizona and other battleground states where former President Donald Trump lost found no evidence of fraud, miscounts or other problems.
Reached by phone while driving to her home in Prescott on Friday morning, Fann said she had not yet talked to Senate lawyers other than to be told she had won.
"We are thrilled and grateful that the judge was able to see the big picture in this whole issue," she said. "That this has never been about overturning an election. This has always been 100% about voter integrity and finding the answers to all of our voters’ questions about the safety and security and validity of the Arizona electoral system."
The county Board of Supervisors has pointed to repeated checks that show the election was free and fair and properly conducted. They also did two additional audits in an effort to mollify the Senate.
Early this week, they released the results of those new audits of their equipment that showed no malicious software or incorrect counting equipment and that none of the computers or equipment were connected to the internet. Previous reviews and a hand recount of a sample of ballots also found no issues.
The state Senate wants its own forensic audit. The Senate fell one vote short of finding the five-member board in contempt earlier this month.
The county Board of Supervisors previously turned over reams of data but balked at handing over the actual ballots or the tabulation machines, saying the ballots were by law secret and the machines would be compromised.
Fann said she now will move forward with a full forensic audit, working from the audits the county just completed. That effort was incomplete, she said, and only looked at vote counting machines and software.
"This will certainly give us the opportunity to get a more independent forensic auditor in there to verify that work," she said. "And then do the rest of the audit, which actually verifies the ballots and more sampling of the signatures."
Fann said she wants to make a deeper diver into questions Republicans have raised about the state’s mail-in ballot system. Arizonans have embraced mail voting, and more than 80% of voters cast ballots early by mail or in-person.
"I really want to get questions answered about how many mail ballots are going our to people who are no longer living, or are no longer living in Arizona, or going to wrong addresses, and what we can do to fix those problems," Fann said.
Democratic Sen. Martin Quezada said any new audits won’t persuade Republicans who argue without evidence that Trump lost the election because of fraud.
"If anything this is going to further rile up a base of people who want to believe that this election was stolen," Quezada said. "If this was going to answer questions, I think any of the previous multiple audits that have already been done would have answered those questions."
Thomason lamented that the courts had become embroiled in a political fight, calling the "highly bitter dispute" between "dedicated public servants" in two branches of government "regrettable" and noting he had urged them to reach an agreement outside of court.
"They apparently have not done so. Our governmental officials should not be spending valuable resources on lawyers, ‘fighting’ with another branch of government over what materials can be provided to another branch of government under a subpoena," Thomason wrote. "Rather, the citizens expect their governmental officials to work cooperatively for the common good. It is highly unfortunate that that has not happened here. When government officials resort to ‘name calling’ and threats, something has gone terribly wrong."
Arizona lawmaker reacts to the ruling
Rep. Athena Salman called the decision a "disturbing" abuse of power, sounding off on Arizona supreme court’s decision — which says senators have the power to issue legislative subpoenas and oversee elections.
"There is no reason but to overturn, which was a free and fair election, but now it sets a precedent that our state senators and politicians can get access to virtually every ballot cast," Salman said.
Salman says by unsealing those ballots, auditors will be able to see every single person that you voted for, from the presidential race to the city council.
"Envelopes voter information, election equipment and they can coordinate with the campaigns that lost the election and they can also confer with companies that have been pushing the big lie that our elections weren’t conducted with the highest integrity," Salman explained.
This is news that’s concerning to some voters, including Julie Haven, who says if this continues, she will reconsider whether she will ever vote again.
"My understanding was my ballot was private, my vote was private and if anyone can get ahold of it because they believe in conspiracy theories and lies, who knows who could get ahold of it next time?" Haven said.
Senate Republicans who called for this audit say this decision is "... not an attempt to overturn election results." It is rather to "... restore voter confidence in election integrity."
Salman says she doesn't worry individual votes will leak out to the public, but she is concerned whether you voted at all will be made public.