Maricopa County is preparing for a new audit of election results. Here's how it might go

The Maricopa County Board of Supervisors is preparing to release election material to the Arizona Senate in response to its subpoenas, so that the Senate can perform an audit.

The supervisors said in a statement on Wednesday that they continue to negotiate with the Senate on how to respond to the subpoenas, while Senate President Karen Fann put out a statement on Wednesday that said the Senate and supervisors had come to an agreement.

The announcement of a potential agreement comes the day President Joe Biden was inaugurated and as a legal battle between the supervisors and Senate has lasted more than a month.

A list provided by Senate Republicans shows what could be included in the agreement, including, but not limited to:

• The county will provide images of ballots.
• An audit will be performed including a logic and accuracy test on a random sample of tabulation machines and a review of the source code on a random sample of tabulation machines.
• The audit will only examine material related to the "2020 election."
• The auditor will be certified by the U.S. Election Assistance Commission and will have access to a "random sample of desktops, servers, and routers" in a way that wouldn't disrupt county operations.
• Only authorized parties would have access to data or materials provided by the county.
• The parties will "work together in good faith" to resolve issues arising during the audit.

The supervisors declined to confirm the terms of the potential agreement.

The Senate first issued two subpoenas to the supervisors on Dec. 15 after repeatedly calling on them to complete an additional independent audit of general election results, even though the routine audit the county conducted went flawlessly and challenges to the outcome alleging irregularities and fraud failed in court.

The subpoenas gave the supervisors three days to respond and produce a voluminous amount of material from the general election, including images of all mail-in ballots, detailed voter information and machines used to count votes.

Instead of responding, the supervisors sued to stop the subpoenas, saying, in part, that state law prohibits the county from turning over copies of ballots and arguing the Senate was overreaching its powers. The supervisors asked the court to decide whether they had to respond.

Potential agreement reached regarding subpoenas

More recently, though, Supervisors Chairman Jack Sellers authorized attorneys to negotiate with the Senate, according to county spokesperson Fields Moseley.

Once there is a final plan, the board will vote on it, Moseley said.

In a letter to state Sen. Paul Boyer, Supervisor Bill Gates said that the supervisors, "stand ready to work with the Arizona Senate to provide additional documents and material responsive to the January subpoena."

"In these challenging times, we believe that we can best represent our shared constituents by working together to determine how our state’s election system can be further improved to ensure that every valid vote is counted," Gates wrote.

Senate Republicans consider the negotiations complete.

"I am pleased to announce that after a hard-fought battle to seek information on behalf of Arizona voters regarding the integrity of the 2020 election, we have reached a favorable agreement with the Maricopa County Board of Supervisors," Fann wrote in her statement on Wednesday. "Not only has the Board agreed to turn over all the relevant information we sought in our subpoenas so that we may perform an audit, but they also acknowledge that the Legislature is a sovereign power of the state and that the county is a political subdivision, and as such, the Legislature has the constitutional and statutory authority to issue subpoenas."

On Jan. 19, Sellers wrote a letter to Fann acknowledging that the county "holds none of the sovereign power in the state," and that each legislative body "has power to issue legislative subpoenas by statute and as provided by the Constitution."

His letter seems to adhere to another one of the terms of the potential agreement with the county that states, "The County will acknowledge the legislature’s authority to issue investigatory subpoenas."

Judge had asked county, Senate to come to agreement

The supervisors, four Republicans and one Democrat, help oversee general elections in the county and are responsible for certifying election results. The supervisors voted on Nov. 20 to certify the results of November's elections, after spending hours asking county officials questions about the integrity of the election results. 

Since the subpoenas were issued, Maricopa County Superior Court judges have considered the intent of the subpoenas, in part to determine whether the Senate had power to issue them.

County attorneys have argued that the subpoenas were a last-ditch attempt to try to overturn the results of the election, in which Arizona voted to elect President Joe Biden, to which Superior Court Judge Timothy Thomason said last week, “that ship has clearly sailed.”

Senate attorneys argued that the subpoenas were intended to give the lawmakers access to election materials that will be important as they consider whether to pass new election-related laws.

Attorney General Mark Brnovich weighed in, telling the court in a brief that the Senate had the authority to issue the subpoenas.

Brnovich wrote that the supervisors misunderstood the scope of the Legislature’s sweeping authority to issue and enforce subpoenas. The brief contends the county’s position is “inconsistent with constitutional structure, governmental tradition and practice, the plain meaning of an Arizona statute, and binding Arizona Supreme Court case law.”

At a court hearing last week, though, Thomason said that the subpoenas were now moot, because the Legislature that issued the subpoenas adjourned and a new Legislature has convened.

Perhaps understanding that this could become an issue, the Senate issued a new subpoena a day before that court hearing, with the same demands.

A county attorney urged Thomason to wait to see how the county responded to the new request, saying that he was “fully confident” that the county could work with the Legislature on the request.

Thomason did not make a decision on the case and instead told the lawyers that the county and the Legislature should come to a solution outside of court.

“I do wonder why the senators and county officials can’t sit down and work this out,” he said. “It just seems, as responsible government officials, it is incumbent upon them to sit down and work this out.”

A court hearing scheduled for Wednesday morning was vacated. 

Arizona Republic reporters Andrew Oxford and Maria Polletta contributed to this article.

Reach the reporter at jen.fifield@azcentral.com or at 602-444-8763. Follow her on Twitter @JenAFifield. 

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