Arizona Senate Passes Bill Strengthening Its Investigative Powers Amid Maricopa County Vote Audit Dispute

A poll worker sorts ballots inside the Maricopa County Election Department in Phoenix, Ariz., on Nov. 5, 2020. Olivier Touron/AFP via Getty Images

The Arizona Senate passed a bill Thursday that would grant the Arizona legislature the authority to subpoena election records like ballots and tabulating equipment, and ignore any laws to the contrary.

The Senate passed Senate Bill 1408 on its third reading in the state’s upper chamber along a 16–14 party-line vote, with Republicans voting for and Democrats voting against.

The bill amends a portion of the Arizona statutes such that county election equipment, systems and records, and other information that is under the control of county personnel “may not be deemed privileged information, confidential information, or other information protected from disclosure.” It also subjects such records to a subpoena and stipulates that they “must be produced” and the legislature’s authority to conduct related probes “may not be infringed by any other law.”

The rule change is to be retroactive as of Dec. 31, 2019, meaning it would apply to records around the November election.

State Sen. Warren Petersen, a Republican, introduced the bill amid a battle between Republican Senate leaders and Maricopa County officials over the attempt by GOP senators to audit the 2020 election.

Republican lawmakers in the Arizona Senate have issued subpoenas to Maricopa County demanding that it turn over a range of election records, calling for a scanned ballot audit and a forensic audit of ballot tabulation equipment and software. But the Maricopa County Board of Supervisors voted against complying with the subpoenas, instead seeking judgment from a court about whether they have to comply. Arizona senators filed a countersuit, asking the court to enforce the subpoenas, which was subsequently dismissed.

County officials alleged the subpoenas were “far in excess” of the state legislature’s power. “The subpoenas are unlawful,” the county said in its lawsuit. A Maricopa County Superior Court judge will hear arguments in the case next week and is expected to rule on the matter in short order, according to the Arizona Mirror.

Arizona’s attorney general has also weighed in on the case, saying that the state legislature has the authority to issue subpoenas regarding the administration of elections.

“The Arizona Legislature has broad power to issue subpoenas regarding election administration in connection with the 2020 general election, both to review how the county discharged its duties during that election and to craft future election legislation. Any argument by the county otherwise should fail,” Attorney General Mark Brnovich, a Republican, said in a court filing.

The passage of Senate Bill 1408 on Thursday gives further impetus to Republican senators’ efforts and their subpoenas, which were spurred by claims of irregularities in the November election.

The Maricopa County Board of Supervisors takes the first step toward suspending an elected official accused of running a human smuggling scheme during a meeting in Phoenix, Ariz., on Oct. 23, 2019. Jonathan J. Cooper/AP Photo

But Sen. J.D. Mesnard, a Republican, told the Arizona Mirror that the bill is less about continuing to litigate the November election as it is about ensuring that the legislature’s investigative authority is clarified and protected to allow a greater impact on election integrity in the future.

“This is a much broader statement about the legislature and our subpoena powers, because as of late, it seems those powers are not respected,” Mesnard told the outlet. “Our subpoenas are supposed to matter. This is making that very clear.”

“Even if you set aside this election, if something nefarious happens in the future, regardless of whether you believe it happened now, and suddenly you wanted to investigate it, you would find yourself in the very same situation,” he added.

Arizona State Sen. Martin Quezada, a Democrat, took aim at the bill, saying it serves to spread disinformation about the election.

“The more we continue down this path, we continue to spread the ‘Big Lie’ that something was wrong with our elections. The more we continue to go after the county board of supervisors and try to subpoena all this information … we are furthering and perpetuating this lie,” Quezada told the Arizona Mirror.

Meanwhile, Maricopa County officials said in late January that they will carry out a comprehensive forensic audit of its voting systems to allay concerns raised by some constituents about the integrity of the November 2020 election.

The Maricopa County Board of Supervisors voted unanimously at a Jan. 27 meeting to hire two independent companies to conduct an audit that will review whether voting machines counted votes correctly, and whether they were tampered with or hacked in any way.

The Republican-dominated board defended the accuracy of the county’s election results, while expressing hope that a comprehensive equipment and software audit would dispel concerns that the results were inaccurate.

“Maricopa County elections were administered with integrity throughout 2020. That’s a fact. Multiple audits to date have proved as much, and multiple court rulings have concurred,” Chairman Jack Sellers said in a statement.

“It’s also true that a significant number of voters want the additional assurance that a full forensic audit of tabulation equipment might bring, especially given all the misinformation that spread following the November 3 election,” Sellers said.

Senate Bill 1408 now heads to the Arizona state House for reconciliation, after which it would head to the desk of Gov. Doug Ducey for a possible signature.