Attorney General Brnovich Says Maricopa County Must Comply With Senate Election Subpoena

By Howard Fischer, Capitol Media Services
Published: Thursday, August 26, 2021 - 5:57pm
Updated: Friday, August 27, 2021 - 8:29am

Maricopa County is breaking the law by refusing to provide materials demanded by the Republican state senators for a controversial review of the 2020 election, Attorney General Mark Brnovich concluded Thursday.

In a formal finding, Brnovich determined the county is required to comply with Senate subpoenas to provide its routers, which direct computer traffic among computers, as well as user names, passwords, PINS and security keys or tokens to gain access to the tabulation devices used in the 2020 general election.

All those were sought after Cyber Ninjas, the private firm with no previous election-related experience hired by Senate President Karen Fann (R-Prescott) to review the election in Maricopa County. Cyber Ninjas and other contractors claim the items are needed to determine whether the equipment was in any way affected by outside forces, including whether the tabulators were connected to the internet at any time.

Under the law that prompted Brnovich’s investigation, Maricopa County officials now have until Sept. 27 to comply with the Senate’s demands. If they don’t, state officials are required to withhold hundreds of millions of dollars in state revenues shared with the county.

County officials may also appeal Brnovich’s decision to the Arizona Supreme Court.

In a statement, a spokesman for the Maricopa County Board of Supervisors said officials are aware of the attorney general’s report, but would not comment before meeting with their attorneys.

Tom Liddy, chief of the civil division of the county Attorney's Office, already has argued the county cannot comply.

"Providing these routers puts sensitive, confidential data belonging to Maricopa County citizens — including social security numbers and protected health information — at risk,'' Liddy wrote to the Attorney General’s Office. 

Liddy also pointed out that Sheriff Paul Penzone believes that producing the routers "would render MCSO internal law enforcement communication infrastructure extremely vulnerable to hackers, be they criminal cartels, terrorists, or foreign powers.''

That argument holds no water with Brnovich.

“The subpoenas are, in essence, the equivalent of a court order, requiring production of certain information,'' wrote Assistant Attorney General Beau Roysden on behalf of his boss. “The county cannot avoid a subpoena based on statutes that require that the materials being subpoenaed be kept confidential.''

Less clear is the demand for the password and security keys.

Maricopa County officials have long said the county doesn't have them — they belong to Dominion Voting Systems for its own administrative access to the equipment. Liddy said the county doesn't need them to conduct elections.

Those issues aside, attorney Edward Novak, hired by the county to respond to the complaint, said the county isn't breaking any law even if it didn't produce what the Senate wants.

He pointed out the latest subpoena as issued on July 26, 26 days after the legislature adjourned.

More to the point, Novak notes that the law cited in the complaint makes a contempt charge the only remedy to enforce the subpoena. With the legislature out of session, Novak said there’s no clear path for lawmakers to exercise that authority..

Brnovich, however, said that isn't the case, pointing out the original subpoenas were issued in January. 

The attorney general added that a trial judge upheld the validity of those subpoenas, concluding that the Senate has the right to what it determines is necessary for its own investigations.

“Assessing electoral integrity, examining potential legislative reforms to the electoral process, confirming the accuracy and efficacy of vote tabulation systems, investigating whether to modify or improve powers delegated to a county, and evaluating the competence of county officials in performing their election duties each constitute a valid legislative purpose,'' Brnovich wrote, quoting from the trial judge. 

Brnovich added that is true even if one of the original purposes of subpoenas issued as far back as December were to see if the election results could be challenged.