Arizona Judge Dismisses Lawsuit to Enforce Subpoenas for Election Record, Opens Opportunity for Refile

Poll workers count ballots inside the Maricopa County Election Department in Phoenix, Ariz. on Nov. 5, 2020 Olivier Touron/AFP via Getty Images

A Maricopa County Superior Court judge on Wednesday dismissed a lawsuit by Arizona Senate’s Republican leadership seeking to get access to the county’s voting equipment and materials before Congress counts electoral votes.

The lawsuit was filed Monday by Arizona Senate President Karen Fann and Senate Judiciary Committee Chairman Eddie Farnsworth. It demanded Maricopa County Superior Court Judge Randall Warner force the county to comply with two subpoenas regarding election data no later than Dec. 29, citing complaints from citizens with concerns that their votes weren’t properly counted.

In the Wednesday decision (pdf) Warner dismissed the case, saying that a writ of mandamus—a court order to force government officials to properly fulfill their official duties—is not a “proper remedy” for the enforcement of legislative subpoenas.

“Although Respondents are public officials, they are in this context the subjects of a subpoena and their duty to comply arises from the subpoena, not from their offices,” Warner wrote. “There is no basis in Arizona statute for treating the subject of a subpoena differently because they are a public official.”

Warner also noted that the Senate leaders should have first utilized the Legislature’s own enforcement mechanism of the subpoenas. He pointed to a portion of Arizona law that authorizes the Senate to pass a resolution committing the subject of the subpoena as legislative contempt, which is a class 2 misdemeanor. The subpoenaed witnesses may then be arrested by the sergeant-at-arms and brought before the Legislature.

The Arizona Legislature didn’t pass any such resolution, and is not currently in session.

That being said, Warner suggested that the Senate could file the case again with a “plausible argument” under a proper law that deals with the enforcement of subpoenas issued by public officers.

The official Maricopa results, unanimously certified by the Republican-dominated County Board of Supervisors, show that Democratic presidential nominee Joe Biden leading President Donald Trump by 45,109 votes. In Arizona, Biden led by 10,457 votes.

The Arizona Senate leaders plan to use the results of the subpoenas to determine whether to certify or reject the presidential electors for Joe Biden, which have been transmitted to the U.S. Congress and are due to be counted on Jan. 6, 2021.

“The Republican electors have an obvious interest in any investigation into whether they were improperly deprived of recognition as Arizona’s true electors,” Alexander Kolodin, the attorney representing the 11 Republicans who would serve as Trump’s electors, wrote in a separate complaint asking Warner to enforce the subpoenas.

The only way for the electors to protect that interest “is by helping to ensure that the state legislature gets all of the information it needs to conduct a full and thorough investigation,” Kolodin added.