Decide Denies GOP’s Movement for Enforcement, Leaving Door Open to Additional Litigation – Arizona Capitol Occasions
A judge has refused to order Maricopa County regulators to comply with a subpoena requesting access to various voting papers and equipment.
In a ruling late Wednesday, Judge Randall Warner said he found nothing in the Arizona Constitution that specifically allowed him to enforce such a subpoena. And the judge rejected arguments from attorney Kory Langhofer, according to which the legislature was “implicitly” empowered to ask a court to enforce its claim.
“Regardless of the implicit power the constitution might confer on lawmakers, neither the cited federal cases nor any provision of the cited Arizona Constitution endorses the granting of such implicit authority to individual lawmakers or the legislature,” he wrote that afternoon after legal Arguments.
Clint Hickman, chairman of the regulators, immediately issued a press release saying the decision supports the board’s decision to refuse to comply with the subpoenas “to protect both the privacy of voters and the integrity of our elections” .
But Hickman’s declaration of victory may prove premature.
While rejecting Langhofer’s arguments about the legislature’s right to judicial intervention, the judge said that another of his legal theories might be justified. That, Warner said, is based on a separate state law that says that person can call a judge to enforce if an officer is empowered to issue a subpoena.
“This is a plausible argument,” said the judge.
The only thing is that Langhofer never mentioned this law in his briefs, which means Warner couldn’t decide on it.
But the judge told Langhofer that he was free to file a new legal complaint, this time with this argument as to at what point he would examine it – with no guarantee that he would rule in his favor.
The lawsuit is over two subpoenas from Senator Eddie Farnsworth, R-Gilbert, who chairs the Senate Judiciary Committee, which deals with complaints about the conduct of the Maricopa County elections, whether the Dominion Voting Systems equipment used has a proper census and whether there is evidence of fraud or misconduct.
One looks for copies of all mail-in and postal ballot papers as well as the associated logs and tapes of the devices for scanning and tabulating ballot papers.
The other requires that the district grants an analyst who is still to be elected access to the voting devices and the software used. There is also an order for the county to submit daily and cumulative voter records showing the name, address and date of birth of each voter, where and when they voted, their party affiliation and any information about when they requested an early vote, contain. when it was broadcast, when it was voted and, if applicable, when it was canceled.
Regulators resisted, arguing that much, if not all, of the information was confidential.
Even if Warner later says lawmakers can ask him to enforce a subpoena, that doesn’t guarantee that he’ll agree. That goes to another legal question: who exactly can issue a subpoena?
“It is an absurd notion that any committee chairman can confiscate any documents they want,” Steve Tully, attorney who represents the board, told the judge on Wednesday. And he pointed out to Warner that it’s not just about making records.
“It is that they allow one of their agents to examine some of the machines,” Tully said. “The idea that any chair outside of the session can ask for this kind of access and give it to anyone they want as an agent, and then give it to anyone they want and then check it out myself, is something I do I’m pretty sure the courts would firmly oppose this. “
Langhofer countered that state laws allow the legislature to issue summons.
In fact, he argued that lawmakers didn’t even need a specific reason to go on a “fishing expedition”.
“It can do it like a grand jury,” Langhofer said, although he said Farnsworth had cause for concern over calls from voters to inquire about the electoral process. And he said lawmakers need to find out what, if anything, went wrong this year so they can make changes to state electoral laws at the start of the new session.
But even if Warner agrees, he has yet to decide whether the law on denying a legislative subpoena is as broad as Langhofer claims.
It is said that if someone fails to comply, “the Senate or the House may, by resolution recorded in the diary, make them contempt.” However, there is no such resolution that the Senate is not in session, only permission to issue the subpoena given to Farnsworth by Senate President Karen Fann, R-Prescott.
The law also says that the sergeant can arrest someone who refuses to obey. But here too, the statute seems to require a resolution signed by the Senate.
As soon as Langhofer has submitted the new legal documents, Warner will plan a new hearing.