AZ AG to Maricopa County: Comply with Election Audit Subpoena or Lose State Funding

FILE - In this April 22, 2021, file photo, Cyber Ninjas owner Doug Logan, left, a Florida-based consultancy, talks about overseeing a 2020 election ballot audit ordered by the Republican lead Arizona Senate at the Arizona Veterans Memorial Coliseum, during a news conference in Phoenix. Arizona’s largest county has approved …
AP Photo/Ross D. Franklin, File

Arizona Attorney General Mark Brnovich (R-AZ) told Maricopa County officials on Thursday they must comply with an election audit subpoena from the Arizona State Senate or they will lose state funding.

“We are notifying the Maricopa County Board of Supervisors that it must fully comply with the Senate’s subpoena as required by the law. Our courts have spoken. The rule of law must be followed,” Brnovich said in a statement released by his office on Thursday.

Brnovich added that if the Maricopa County Board of Supervisors fails to comply with the Senate’s subpoena “within 30 days,” his office “will notify the Arizona Treasurer to withhold state revenue from Maricopa County” until the Board of Supervisors complies with the subpoena.

The statement continued:

Today’s decision stems from a “SB 1487” complaint filed by Senator Sonny Borrelli under A.R.S. § 41-194.01, which authorizes any legislator to request the Attorney General investigate a county or city alleged to be in violation of state law. On July 26, 2021, Arizona Senate President Karen Fann and Senator Warren Petersen (Senators) issued a subpoena to MCBOS (Maricopa County Board of Supervisors) related to the Senate’s audit of the 2020 election. The Senators requested six categories of items for production by August 2, 2021, including routers and network logs.

MCBOS objected to the requested information, and to date, has not provided all of the subpoenaed materials. Moreover, in its response to the AGO, MCBOS failed to explain why it is not required to comply with the legislative subpoena. Its only response was that the Arizona Senate is not currently in session, so MCBOS could not be held in contempt.

If MCBOS fails to resolve the violation within 30 days, the AGO, in accordance with state law, will notify the Arizona Treasurer to withhold state revenue from Maricopa County until MCBOS complies. More information on “SB 1487” investigations can be found here.

The Maricopa County Superior Court previously affirmed that the Senate has the power to issue legislative subpoenas related to election reform and has broad discretion to determine what additional information is needed.

When MCBOS refused to comply earlier this year, the Court ruled the subpoenas did not violate the separation of powers principles, and producing subpoenaed materials would not violate confidentiality. The majority of MCBOS publicly welcomed that decision after it came out and chose not to appeal (More here). The legal principles announced in that decision are no less persuasive or binding today.

Attorney General Brnovich has consistently recognized the Senate’s authority to conduct the audit and issue legislative subpoenas related to the 2020 election. In December 2020, the AGO wrote this amicus brief in support of the Senate’s authority.

The Arizona Audit of the 2020 election is still underway. At this time, the AGO has not received any official report related to the Senate’s audit, but stands ready to review the official findings and any information submitted after a final report is completed by the Senate.

As Breitbart News reported, Bronovich initiated an investigation into the failure of Maricopa County officials to comply with the July 26 election audit subpoena from the Arizona State Senate on August 6:

Arizona Attorney General Mark Brnovich’s office informed the Maricopa County Board of Supervisors in a letter sent on Friday that it has launched an investigation into allegations the county has not “compl[ied] with valid and enforceable legislative subpoenas that originated from the AZ State Senate.”

The investigation was launched in response to a legislative request from Arizona State Senate Majority Whip Sonny Borrelli (R-Lake Havasu City). Under Arizona law, the Attorney General is required to initiate an investigation into any request for investigation filed with its office by a state legislator. . .

The letter outlines three possible outcomes of the investigation:

  1. If MCBOS has not violated any provision of state law or the Arizona Constitution, the Attorney General’s Office will take no further action.
  2. If MCBOS may have violated a provision of state law or the Arizona Constitution, the Attorney General will file an action in the Arizona Supreme Court.
  3. If MCBOS has violated a provision of state law or the Arizona Constitution, the Attorney General’s Office will give MCBOS 30 days to correct the violation. If at the end of the 30 days MCBOS has not made the correction, the Attorney General will notify the State Treasurer to withhold state funds from the county. (emphasis added)

Attorney General Brnovich’s full report on the investigation, which concluded that the Maricopa County Board of Supervisors have, in fact, violated provisions of Arizona state law, was released on Thursday and can be seen here.

A draft of the forensic election audit report of Maricopa County was expected to be delivered to the Arizona State Senate on Monday, but the delivery of that draft report has been delayed because several members of the management team conducting the audit recently tested positive for COVID-19.

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