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Maricopa County, Dominion won't comply with new Az Senate subpoenas

Maricopa County will not comply with the latest subpoena from Senate President Karen Fann for routers and other materials for her election review, essentially challenging her to enforce it with the knowledge that she doesn't have the votes to hold the Board of Supervisors in contempt.

Dominion Voting Systems, which provides the county's ballot tabulation machines, also refused to comply with a subpoena that Fann issued demanding administrative passwords for the devices the company leased to Maricopa County for the 2020 election, asserting that the company is not subject to the Senate's subpoena authority.

Fann and Senate Judiciary Committee Chairman Warren Petersen ordered the supervisors and representatives of Dominion to appear at the Senate at 1 p.m. Monday to comply with their subpoenas. No one showed up on their behalf. Instead, they informed Fann in a letter that they wouldn't comply.

In a letter from the Maricopa County Attorney's Office, Civil Division Chief Thomas P. Liddy noted that the county has already provided some of the materials Fann sought for her so-called audit of the 2020 election in Maricopa County in response to a previous subpoena. For example, the county recorder's office already provided digital images of the envelopes used to return early ballots, which contain the affidavits that voters sign to affirm their identities. Other items, such as the passwords that provide administrative access to the ballot tabulation machines, have never been in the county's possession, Liddy wrote.

As for the routers and their associated digital logs, the county simply refused to hand them over, echoing the same arguments the supervisors have made to the Senate for months. County officials say the routers, which are used by various county agencies and departments, contain sensitive, confidential information about Maricopa County residents that would be potentially compromised if turned over to the Senate or its election review team. Removing the routers would also "severely disrupt" county operations and cost millions of dollars, Liddy wrote.

The Senate and its audit team have said they want the routers to ensure that the county's ballot tabulation machines weren't connected to the interview and that they weren't sending or receiving information during the election. Liddy explained that a forensic audit conducted by two companies accredited by the U.S. Election Assistance Commission already confirmed that the machines were never connected to the internet. Liddy said other documents and data the county provided to the Senate also confirms that.

"Anyone with sufficient knowledge and understanding of elections is able to confirm, through a review of these logs or through an inspection of the tabulators, that the equipment was not connected to the internet and had no wifi devices installed," Liddy wrote.

Liddy said the county won't provide the logs for the same security reasons it won't turn over the routers.

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After the board met in executive session for about four hours, Vice Chairman Bill Gates told reporters that the new subpoenas were nothing more than "political theater" timed to coincide with former President Donald Trump's July 24 speech in Phoenix, when he aired false claims that the election in Arizona was rigged against him and repeatedly called on Republican state senators to obtain the disputed routers.

Gates didn't question Fann's legal authority to subpoena the items so much as he questioned how she can force the county to comply. In February, Fann sought to hold Gates and the other county supervisors in contempt, but the effort failed on a 15-15 vote after Sen. Paul Boyer broke ranks with his fellow Republicans and voted against it. Since then, Republican Sen. Michelle Ugenti-Rita has joined Boyer in publicly criticizing the audit, which she calls "botched."

Even if Fann had 16 votes for a contempt resolution — Republicans have only a one-vote majority in the Senate — there would be no way to introduce or vote on it because the Senate is not in session and won't return to the Capitol until January.

Dominion told Fann in a letter Monday that her subpoena against the company was invalid and even unconstitutional. Eric Spencer, a Phoenix attorney representing the company, said the request violates Dominion's due process rights under both the U.S. and Arizona constitutions because the Senate seeks to deprive the company of its property rights, and that the subpoena violates Dominion's Fourth Amendment right against unreasonable search and seizure, among other arguments.

Furthermore, Spencer wrote, the subpoena is "untethered to any valid legislative purpose," and he alleged that it is being "used as a tool of harassment." Spencer noted that the audit team has already returned the tabulation machines to the county, making the Senate's request for passwords to those machines pointless.

Spencer also objected, as the company has before, to the notion that Dominion should turn over sensitive information to Cyber Ninjas, the company leading Fann's self-styled audit. The company's CEO, Doug Logan, was an active promoter of conspiracy theories and false fraud claims about the election. Logan, who designed the election review's scope and procedures, and other subcontractors have little to no background in elections, as well.

"Releasing Dominion's intellectual property to an unaccredited, biased, and plainly unreliable actor such as Cyber Ninjas would be reckless, causing irreparable damage to the commercial interests of the company and the election security interests of the country. No company should be compelled to participate in such an irresponsible act," Spencer wrote.

It's unclear how Fann will respond, or whether she will go to court in an attempt to force either the county or Dominion to comply with the subpoenas. Fann's spokespeople did not respond to questions about her next step.

This report was first published by the Arizona Mirror.

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Jerod MacDonald-Evoy/Arizona Mirror

A door at the Arizona Senate.