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Law Offices
Sherman & Howard L.L.C. 201 East Washington Street, Suite 800
Phoenix, Arizona 85004-2327 Telephone: (602) 240-3000
Fax: (602) 240-6600 (AZ Bar firm no. 00441000)
John Alan Doran (AZ Bar No. 012112) ([email protected] )
Craig A. Morgan (AZ Bar No. 023373) ([email protected])
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF MARICOPA
MARICOPA COUNTY, et al., Plaintiffs,
v.
KAREN FANN, et al.,
Defendants. ___________________________________ MARICOPA COUNTY, et al.,
Plaintiffs, v.
KAREN FANN, et al.,
Defendants.
No. CV2020-016840 No. CV2021-002092
VERIFIED APPLICATION FOR TEMPORARY RESTRAINING
ORDER/PRELIMINARY INJUNCTION
AND
APPLICATION FOR AN ORDER TO SHOW CAUSE
(Expedited Hearing Requested)
Law Offices HINSHAW & CULBERTSON LLP 2375 E. Camelback Rd. Suite 750 Phoenix, AZ 85016 602-631-4400 602-631-4404 Stephen W. Tully (014076) [email protected]
ALLISTER ADEL MARICOPA COUNTY ATTORNEY Thomas P. Liddy (019384) Emily Craiger (021728) Joseph I. Vigil (018677) Joseph J. Branco (031474) Joseph E. LaRue (031348) Deputy County Attorneys [email protected] [email protected] [email protected] [email protected] [email protected] CIVIL SERVICES DIVISION 225 West Madison Street Phoenix, Arizona 85003 Telephone (602) 506-8541 Facsimile (602) 506-4317 [email protected]
Counsel for Maricopa County Plaintiffs
Clerk of the Superior Court*** Electronically Filed ***
T. Hays, Deputy2/8/2021 10:17:42 AM
Filing ID 12518844
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The Arizona Senate, through a few of its misguided members, wants to hold every
member of the Maricopa Board of Supervisors in contempt and have them arrested for
allegedly failing to comply with an invalid subpoena issued for an illegitimate purpose--all
without a modicum of due process. This Court must immediately enjoin the Senate from
ignoring basic tenants of due process in furtherance of a blatant attempt to create dangerous
and false political theatre.
Pursuant to Arizona Rule of Civil Procedure 65 and A.R.S. § 12-1801 et seq., plaintiffs
Maricopa County, Jack Sellers, Bills Gates, Clint Hickman, Steve Chucri, and Steve
Gallardo (collectively, the “Supervisors”), request this Court issue:
(1) An Order to Show Cause ordering defendants (collectively the “Senators”) to appear
and show cause why the Supervisors should not be granted the injunctive relief they seek
herein; and
(2) A temporary restraining order, and later preliminary and permanent injunction, for
the purpose of restraining and enjoining the Senators from taking any further action to hold
the Supervisors in contempt pursuant to A.R.S. §§ 41-1153 or -1154-incluidng voting to do
so, or to enforce that contempt pursuant to A.R.S. §§ 41-1153 or -1155, until this Court
determines whether (a) the subpoena at issue were lawfully issued and remain valid, and (b)
any contempt process utilized against the Supervisors will afford them basic due process,
which at minimum includes adequate notice of how precisely the Supervisors have acted
contemptuously and an adequate opportunity to address those allegations. This Application
is supported by the Declaration of Chairman Jack Sellers, attached as Exhibit 1.
Memorandum of Points and Authorities
In the aftermath of politically charged paranoia about so-called “election rigging” and
“vote stealing” the Senators have set their sights on the Supervisors in an effort to press
ahead with a false narrative belied by the actual facts and evidence. This time, the Senators
want to hold the Supervisors in contempt and threaten them with incarceration (if not
actually incarcerate them) for purposes of creating political theatre.
To that end, on January 12, 2021, the President of the Arizona Senate and the Chairman
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of that chamber’s Judiciary Committee issued subpoenas commanding the Supervisors,
Maricopa County Recorder, and Maricopa County Treasurer to appear for testimony before
the Judiciary Committee on January 13 at 9:00 a.m.—about 17 hours later—and to bring
with them, among other items, roughly 2.1 million voted sealed and secret paper ballots,
and certified elections equipment used in the 2020 general election in Maricopa County.
See Exhibit A.
Those subpoenas did not follow a vote of the full Arizona Senate to establish an
investigation related to the 2020 general election in Arizona. See, e.g., Buell v. Superior
Court, 96 Ariz. 62, 64 (1964). Instead, the subpoenas followed a prior legal dispute about
similar legislative subpoenas requesting these items to desperately try and substantiate
months of conspiracy theories debunked by the press and rejected by the courts.1
In a show of good faith and public service, the Chairman of the Maricopa County Board
of Supervisors, the Maricopa County Recorder, and the Maricopa County Treasurer
appeared with counsel at the Arizona Capitol to testify before the Judiciary Committee and
discuss the subject of these subpoenas, despite our stated objections to the subpoenas. See
Exhibit B. But there was a problem: there was no hearing at the Arizona Senate on January
13; one was never scheduled, and one was never held. Indeed, the County representatives
who arrived as ordered were told to leave. In other words, the Subpoenas were a sham.
Despite this obvious set-up, in the days that followed--and, again, as a sign of good
faith--the Supervisors and the Maricopa County Recorder produced over 11 gigabytes of
data (an estimated over half a million pages) requested by the Senators in their subpoenas,
including the Voter Registration Database (subject to the redactions of certain personal
1 See, e.g., Madeleine Ngo, Fact check: Arizona Senate, Maricopa County
negotiating deal on election data, USA Today, (Jan. 21, 2021, 7:10 p.m.), https://www.usatoday.com/story/news/factcheck/2021/01/21/maricopa-county-agreement-arizona-senate-joe-biden-inauguration/6661033002/ (“Trump and his supporters have repeatedly alleged that Biden unfairly won the 2020 election, but these claims are baseless,” and collecting some debunked conspiracy theories); see also Jeremy Duda, Fann picks Trump-allied firm with history of false election statements to audit Maricopa election, AZ Mirror (Feb. 3, 2021, 8:11 a.m.), https://www.azmirror.com/2021/02/03/fann-picks-trump-allied-firm-with-history-of-false-election-statements-to-audit-maricopa-election/.
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information required by law) and numerous computer log files and ballot tabulation reports
associated with the November 3, 2020, general election. The Supervisors also voted to
perform two additional audits of its elections equipment to once again confirm that the
baseless conspiracy theories about the 2020 general election in Maricopa County were just
that--baseless. These audits were in addition to the statutorily mandated hand count
completed on November 9, 2020 that the machines performed with 100% accuracy.
Rather than working with the Supervisors to resolve this dispute, the President of the
Arizona Senate and the Chairman of the Judiciary Committee introduced a resolution to
hold the Supervisors in contempt. See Exhibit C. This, despite the Supervisors’ sincere
and substantial efforts at compliance--even after showing up to a hearing that was never
scheduled and providing a multitude of documents and information as reasonably quickly
as possible (documents and information one can safely assume the Senators have not
bothered to review carefully before launching into effectuating their manufactured
conspiracy of contempt).
The Supervisors recognize the lawful authority of the Senate to issue subpoenas, and
understand that the Senate has the right to expect lawful subpoenas to be obeyed. But the
Senate is not above the law, and it cannot demand, upon pain of imprisonment or a
misdemeanor conviction, that its subpoenas be obeyed even when unlawful, as it does here.
Accordingly, for the following reasons, this Court should enter the temporary restraining
order and preliminary injunction the Supervisors seek.
I. THE FACTS
A. THE 2020 ELECTION STRICTLY COMPLIED WITH THE LAW
Maricopa County conducted a general election on November 3, 2020, which included
an election for presidential electors (the “Election”). All of the vote tabulators and ballot
printers, Maricopa County used to conduct the Election had been certified by the Arizona
Secretary of State and also tested and certified by a laboratory that is accredited by the
United States Elections Assistance Commission pursuant to the Help America Vote Act (as
Arizona law requires, see A.R.S. § 16-442).
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Prior to the Election, on October 6, 2020, the Arizona Secretary of State conducted a
pre-election logic and accuracy test of the vote tabulation machines--as required by Arizona
law (see A.R.S. § 16-449) and in accordance with the procedures, testing requirements and
protocols established by the Arizona Elections Procedures Manual.2 This logic and
accuracy test is an audit of the vote tabulation machines’ ability to properly read and
accurately tabulate ballots. It consists of using the tabulation machines to tabulate pre-
marked ballots to ensure that the tabulation totals are correct. The vote tabulation machines
received a perfect score, making them 100% accurate. See Exhibit D (a true and correct
copy of the October 6, 2020, Logic and Accuracy Certificate of Accuracy).
After the Election, on November 18, 2020, the Arizona Secretary of State conducted a
post-election logic and accuracy test of the vote tabulation machines, as required by the
Arizona Elections Procedures Manual. See EPM (2019) at 94-95 and 235. The vote
tabulation machines again received a perfect score. See Exhibit E (a true and correct copy
of the November 18, 2020, Logic and Accuracy Certificate of Accuracy).
On November 4, 2020, representatives from the Republican, Democratic, and
Libertarian political parties conducted a post-election, hand count audit of all the ballots
cast at 2% of the vote centers used in Maricopa County, as well as over 5,000 early ballots,
as required by Arizona law. A.R.S. § 16-602; EPM (2019) at 213-33. The vote centers
included in the two percent sample were randomly selected by the political party
representatives. The presidential race was included in the hand count audit. There were no
discrepancies found between the hand count audit and the results tabulated by the vote
tabulation machines--the tabulation found 100% accuracy. See Exhibit F (a true and
correct copy of the Hand Count Audit Report for the November 3, 2020, General Election).
2 The operative version of the Arizona Elections Procedures Manual (“EPM”) is the 2019
version. It is available on the secretary of state’s website, at https://azsos.gov/sites/default/files/2019_ELECTIONS_PROCEDURES_MANUAL_APPROVED.pdf. The Elections Procedures Manual is prepared by the secretary of state in consultation with the elections officials in all fifteen counties. Once approved by the governor and attorney general, the Elections Procedures Manual has the force of law. A.R.S. § 16-452.
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B. NUMEROUS LAWSUITS CHALLENGING THE 2020 ELECTION WERE FILED AND FAILED MISERABLY
Despite the various audits that demonstrated that Maricopa County’s election was
accurately tabulated, numerous challenges and election contests were filed contesting the
results. Plaintiffs in these cases included President Donald Trump, the Arizona Republican
Party, and the Chairwoman of the Arizona Republican Party, Dr. Kelli Ward. Each of the
cases alleged misconduct by elections officers, erroneous vote counts, unlawful voting, or
deprivation of the right to vote. None of the cases were successful and each was ultimately
dismissed.
The cases filed in Maricopa County Superior Court included:
• Aguilera v. Fontes, No. CV2020-014083 (voluntarily dismissed,
November 7, 2020).
• Donald J. Trump v. Hobbs, No. CV2020-014248 (Min. Entry Order,
November 13, 2020 (after conducting an evidentiary hearing, dismissing
the complaint with prejudice).
• Arizona Republican Party v. Fontes, No. CV2020-014553 (Min. Entry
Order, November 18, 2020 (dismissing the complaint with prejudice and
ordering that the Secretary of State, who had requested her fees, could file
a motion pursuant to AR.S. § 12-349 (the frivolous litigation statute)).
• Aguilera v. Fontes II, No. CV2020-014562 (Min. Entry, November 29,
2020 (after conducting an evidentiary hearing, “dismiss[ing] with
prejudice for failing to state a claim upon which relief can be granted; or
alternatively, denying the relief sought by Plaintiffs given their failure to
produce evidence demonstrating entitlement to same).
• Kelli Ward v. Jackson, No. CV2020-015285 (Min. Entry Ruling,
December 4, 2020 (after conducting an evidentiary hearing, denying the
requested relief and “confirming the election,” because the court found
that the evidence did not show fraud, misconduct, illegal votes, or an
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erroneous vote count), affirmed, Ward v. Jackson, No. CV-20-0343-
AP/EL (Ariz. S. Ct. December 9, 2020) (“conclude[ing], unanimously,
that . . . . the challenge fails to present any evidence of ‘misconduct,’
‘illegal votes’ or that the Biden Electors ‘did not in fact receive the highest
number of votes for office,’ let alone establish any degree of fraud or a
sufficient error rate that would undermine the certainty of the election
results”).
Another election contest was filed in federal district court. Bowyer, et al., v. Ducey, et
al., No. CV-20-02321-PHX-DJH. This lawsuit alleged fraud resulting from foreign
interference in the election via offshore algorithms that somehow infiltrated Maricopa
County’s vote tabulation equipment, leading to “injections” of votes for President-elect
Biden, and ballot fraud. The plaintiffs sought to decertify the election and cause Arizona’s
presidential electors to be awarded to President Trump. After reviewing the “evidence”
plaintiffs submitted, Judge Humetewa dismissed the case. She found that the “Plaintiffs
failed to provide the Court with factual support for their extraordinary claims” and noted
that “[a]llegations that find favor in the public sphere of gossip and innuendo cannot be a
substitute for earnest pleadings and procedure in federal court” and “cannot be the basis for
upending Arizona’s 2020 General Election.” (Doc. 84, Order, December 9, 2020, at 28-
29).3
In sum, there were seven separate challenges to the results of the Election, and all
involved accusations that wrongdoing of some sort happened in Maricopa County. Six
superior court judges, one federal district court judge, and seven Arizona Supreme Court
Justices were involved in the disposition of at least one of those cases. None found any
evidence of wrongdoing on the part of Maricopa County, its elections officers, or the
electronic voting system it uses. And none found any basis for decertifying Arizona’s
3 Another case challenging the result of the Election was filed in Pinal County Superior
Court.: Burk v. Ducey, No. S1100CV202001869. The plaintiff there raised the same claims as alleged in the Bowyer case. It, too, was dismissed.
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election or awarding Arizona’s eleven presidential electors to President Trump.
C. THE ARIZONA SENATE DECIDES TO PERPETUATE ALLEGATIONS OF FRAUD THAT WERE ALREADY DECRIED AS BASELESS IN SEVEN DIFFERENT LAWSUITS
On December 14, 2020, the Arizona Senate Judiciary Committee purported to hold a
“special meeting” in order to question witnesses about the Election.
At the request of the Judiciary Committee, then-Chairman of the Maricopa County
Board of Supervisors, Clint Hickman, voluntarily personally appeared and testified. So did
Scott Jarrett, Maricopa County’s Director of Election Day and Emergency Voting.
Additionally, Thomas Liddy, the Civil Division Chief for the Maricopa County Attorney’s
Office, appeared to answer questions about the various legal challenges to the election that
had been litigated. All told, those public servants voluntarily provided some six hours of
testimony, answering every question put to them, before being excused from the hearing.
The same day as the special meeting by the Senate Judiciary Committee, members of
the Arizona Legislature signed what purported to be a “Joint Resolution.” It requested “that
the alternate 11 electoral votes be accepted for Donald J. Trump or to have all electoral
votes nullified completely until a full forensic audit can be conducted.” It further “resolved
that the United States Congress is not to consider a slate of electors from the State of
Arizona until the Legislature deems the election to be final and all irregularities resolved.”
D. SENATE PRESIDENT KAREN FANN ISSUES THE FIRST ROUND OF SUBPOENAS
Apparently convinced that the dedicated public servants who answered every question
asked of them were being dishonest, and unpersuaded by the many judges who found
absolutely no evidence of any measure of election impropriety, President Fann and the
Judiciary Committee served two subpoenas on the Supervisors the next day, on December
15, 2020, at 3:08 p.m. (the “December 15, 2020, Subpoenas”).
Each of the December 15, 2020, Subpoenas commanded the Supervisors “to produce,
and permit inspection, testing or sampling of the items identified in the attached Exhibit
1”--an extremely large number of documents consisting of multiple hundreds of thousands
of pages, as well as all of Maricopa County’s election tabulators and other election-related
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equipment--“on or before 5:00 p.m. on December 18, 2020 to the Chairman of the Senate
Judiciary Committee for inspection, testing or sampling thereafter.” The deadline for
compliance then was just 3 days.
The Supervisors could not lawfully comply with producing some of the items requested
by the December 15, 2020, Subpoenas, such as voted ballots from the Eection. Nor could
the Supervisors produce the full amount of documents requested within the three-day time
period provided by the December 15, 2020, Subpoenas. Thus, the Supervisors filed a
Complaint in the Superior Court, seeking to quash the December 15, 2020, Subpoenas. See
Maricopa County v. Fann, Case No. CV2020-016840.4
President Fann and then-Chairman Farnsworth responded by filing their own special
action against, Case No. CV2020-016904, and moved for a writ of mandamus that would
have compelled the Supervisors to immediately produce the subpoenaed data. In their
application for an order to show cause, President Fann and then-Chairman Farnsworth
stated that they needed relief “sufficiently in advance of the congressional review of the
Electoral College returns on January 6, 2021”--thus demonstrating that the purpose of the
December 15, 2020, Subpoenas, was to overturn the vote of the People of Arizona in the
November 3, 2020, election for president of the United States.
The Supervisors moved to dismiss President Fann’s and then-Chairman Farnsworth’s
Complaint, because were not lawfully entitled to special action mandamus relief to enforce
legislative subpoenas. The Court agreed and dismissed the case.
After their loss in their special action lawsuit, Fann and Farnsworth, along with the rest
of the Senate Judiciary Committee, filed an Answer and Counterclaim in Case No.
CV2020-016840. They also moved for preliminary injunction, again seeking an order
4 The Supervisors alleged that the December 15, 2020, Subpoenas were unlawful for
several reasons. First, because the goal of the subpoenas was to gather data to audit the November 3, 2020, general election, they were ultra vires and lacked a proper legislative purpose. Second, to the extent that the subpoenas sought to adjudicate an election contest or re-canvass the election, they violated the separation of powers doctrine. Third, the subpoenas sought ballots and digital images of ballots, which violated both the Arizona Constitution and statutory law. And fourth, the subpoenas suffered from technical deficiencies.
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compelling the Supervisors to immediately produce the subpoenaed data. While the issue
was being briefed, on January 11, 2021, the 54th Legislature ended, and the 55th
Legislature began. As such, the December 15, 2020, Subpoenas became void and no longer
enforceable.
E. SENATE PRESIDENT KAREN FANN ISSUES THE SECOND ROUND OF SUBPOENAS--SEEKING MILLIONS OF DOCUMENTS AND DEMANDING TESTIMONY WITH ONLY 17 HOURS ADVANCE NOTICE
Perhaps recognizing that the December 15, 2020, Subpoenas were now void, Senate
President Fann and the new chairman of the 55th Legislature’s Senate Judiciary Committee,
Chairman Peterson, issued new subpoenas on January 12, 2021 (the “January 12, 2021,
Subpoenas”).
The January 12, 2021, Subpoenas were directed to the Supervisors, the Maricopa
County Recorder, and the Maricopa County Treasurer. The subpoenas sought identical
items from each of the elected officials. The January 12, 2021, Subpoenas sought an
immense amount of documents, data, and equipment. See Exhibit A. The January 12,
2021 Subpoenas demanded:
a. all of the ballot tabulation and processing equipment (i.e., machines)
used in the November 3, 2020, general election;
b. numerous types of election log files, provided “in XML, EML, JSON,
DVD and XSLT formats;”
c. the Maricopa County Voter Registration Database, containing the voter
registration data for all of Maricopa County’s registered voters;
d. all 2.1 million paper ballots cast in Maricopa County in the November
3, 2020, general election, including early ballots, Election Day ballots,
and provisional ballots; and
e. all electronic images of the ballots cast in Maricopa County in the
November 3, 2020, general election.
The Senators served their January 12, 2021, Subpoenas on the Supervisors at 3:49 p.m.
on January 12. The subpoenas commanded these elected officials to appear at a Senate
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hearing to provide testimony the next day, January 13, 2021, at 9:00 a.m. and bring with
them the multitudinous volume of items listed in the subpoenas -- all with just 17 hours
advance notice.
F. SEVERAL COUNTY REPRESENTATIVES SHOW UP TO A HEARING THAT WAS NEVER MEANT TO HAPPEN
Despite only being given 17 hours’ notice, the Chairman of the Board of Supervisors,
Jack Sellers, along with Maricopa County Recorder Stephen Richer and Maricopa County
Treasurer John Allen, appeared at the Senate Building at 9:00 a.m. to provide the requested
testimony, and also to inform the Senate that, while they could not possibly transport all
the subpoenaed items to the Senate with only 17 hours’ notice, they wanted to discuss how
they might begin production of the subpoenaed material that they could lawfully produce.
However, despite commanding those elected Maricopa County officials to appear to
provide testimony, the Senate had not scheduled a hearing. And so, the Senate held no
hearing, did not allow them to appear, did not take their testimony, and asked no questions.
Instead, instead the Senators sent a staffer who sheepishly informed the Chairman, the
Treasurer and the Recorder that there were no Senators to meet with them that day and
asked them to leave.
In short: the Subpoena was a total sham. It appears the Senators were not even in the
building.
G. DESPITE THE SHAM, AND IN ORDER TO PRESERVE THE PUBLIC’S FAITH IN OUR ELECTION PROCESSES, THE SUPERVISORS NONETHELESS ATTEMPTED TO PROVIDE THE SENATE WHATEVER INFORMATION THE SUPERVISORS COULD LAWFULLY PROVIDE AS TIMELY AS POSSIBLE
The Supervisors, along with the Maricopa County Recorder, quickly began compiling
the data requested by the January 12, 2021, Subpoenas, so production of what was lawfully
allowed to be produced could begin. And attorneys for the Supervisors had numerous good-
faith discussions with attorneys for Senate, trying to resolve various legal and logistical
concerns.
On January 15, 2021, through what can only be described as a herculean effort, the
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Supervisors and the Maricopa County Recorder produced 9.5 gigabytes of responsive data
to the January 12, 2021, Subpoenas, subject to lawfully-required redactions. Then on
January 21, 2021, the Supervisors provided an additional 1.82 gigabytes of data. In total,
the Supervisors and the Recorder provided 11.32 gigabytes of data in response to the
January 12, 2021, Subpoenas.5
While the Supervisors were supplying this data, their attorneys were continuing to talk
with the Senators’ attorneys. On January 20, 2021, the Senators or their representatives
provided the Arizona Republic--not the Supervisors--a list of terms to which the Senators
were willing to agree. See Jen Fifield, Arizona Republic, “Maricopa County is preparing
for a new audit of election results. Here’s how it might go,” January 20, 2021, available
at https://www.azcentral.com/story/news/politics/elections/2021/01/20/maricopa-county-
supervisors-respond-subpoenas-arizona-senate-demanding-election-material-so-senate-
c/4222085001/ (last visited February 4, 2021). Importantly, no agreement was ever reached
between the Supervisors and the Senators concerning what additional data, if any, would
be provided to the Senators. So, despite the fact that the Senators or their representatives
told an Arizona Republic reporter that the Supervisors would provide images of ballots to
the Senators, id., the Supervisors never agreed to that, because Arizona law prohibits them
from producing ballots or their images absent a court order.
Still, in a continued good faith effort to cooperate with the Senate, the Supervisors
retained two U.S. Election Assistance Commission certified laboratories--Pro V&V
Laboratory, and SLI Compliance--to conduct an independent audit of the Maricopa County
tabulation machines and software. The selection of only EAC-certified laboratories to
conduct this audit was necessary because a forensic audit conducted by a technician that is
not certified by the EAC could void the certification and could cause the secretary of state
to de-certify the equipment, meaning it could not be used in Arizona. See A.R.S. § 16-
5 The Supervisors and Recorder alerted the Senate to the reality that neither possessed
some of the data requested in the January 12, 2021, Subpoenas. The Supervisor also asked for, but never received, clarification about some of the requested data--incusing what exactly certain terms meant and what data was being sought.
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442(D).6
The Supervisors developed a scope of work for these EAC-certified firms that would
comprehensively review the tabulators and software, as the Senators represented they
wanted, as follows:
• Verify that hash values submitted to the Arizona Secretary of State as
part of the testing for certification match the components in the
location;
• Verify that no malicious software is running on the components.
• Verify that the components are not connected to the internet;
• Conduct a logic and accuracy test of the 2020 General Election ballot
and program to confirm the equipment is accurately tabulating ballots.
As part of the logic and accuracy test, invite representatives from the
Arizona Legislature and Arizona’s political parties to participate in a
pre and post hand count of the ballots used during the logic and
accuracy test; and
• Perform a physical security assessment of controls the County has
implemented to prevent unauthorized access to central count
processing including ballots, tabulators, servers, and software.
This analysis was scheduled to begin on February 2, 2021.
On January 29, 2021, Senate President Fann inexplicably issued a press release titled
“Senate chooses its own qualified auditing firm to conduct forensic audit of Maricopa
County election results.” President Fann’s press release incorrectly stated that “[w]e have
6 Were the secretary of state to de-certify Maricopa County’s election equipment, the
ability of Maricopa County to conduct a free and fair, safe and secure election would be substantially undermined if not compromised altogether and thus the County and its voters would suffer irreparable harm. Indeed, an election will take place in Goodyear, Arizona, on March 9, 2021. There must be tabulators and other election-related equipment available to conduct that election; otherwise, Maricopa County will violate Arizona law and also compromise its ability to conduct a free and fair election. See, e.g., A.R.S. § 16-447 (requiring the Board of Supervisors to provide at each polling location at least one electronic voting device that complies with the federal Help America Vote Act).
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now learned that the EAC does not certify auditors as such[,]” despite the fact that the EAC
does in fact certify laboratories that conduct audits of election equipment. Chairman
Peterson was also quoted in the press release, stating that President Fann had already
chosen the firm that would conduct the Senate’s audit of Maricopa County’s tabulation
machines.
Currently however, only two laboratories are certified by the EAC as qualified to
conduct analysis on election equipment--the two firms that the Maricopa County Plaintiffs
retained. Neither EAC certified laboratory has been retained by the Arizona Senate and the
firm that the Senators intend to use is not EAC certified.
To be sure, the Supervisors have serious concerns with the firm the Senators may well
intend to use: Allied Security Operations Group (“ASOG”).7 ASOG is not accredited by
the U.S. EAC as a laboratory certified to test election equipment and systems and ASOG’s
employees are wholly unqualified to audit the County’s elections equipment.
Notably, ASOG was founded by Russell Ramsland. Ramsland has publicly claimed,
among other things, that George Soros helped form the “Deep State” in Nazi Germany in
the 1930s—along with President George H.W. Bush’s father, the Muslim Brotherhood, and
“leftists.”8 Ramsland has been discredited for making false claims of overvoting in
Michigan, basing his claims on vote totals from a completely different state--Minnesota.9
7 See Jeremy Duda, Fann picks Trump-allied firm with history of false election statements to audit Maricopa election, AZ Mirror (Feb. 3, 2021, 8:11 a.m.), https://www.azmirror.com/2021/02/03/fann-picks-trump-allied-firm-with-history-of-false-election-statements-to-audit-maricopa-election/; Ben Giles & Steve Goldstein, Senate Republicans Support Resolution To Arrest Maricopa County Supervisors For Contempt, KJZZ (Feb. 3, 2021, 5:41 p.m.), https://kjzz.org/content/1656193/senate-republicans-support-resolution-arrest-maricopa-county-supervisors-contempt.
8 John Savage, Texas Tea Partiers Are Freaking Out Over ‘Deep State’ Conspiracy Theories, Vice (Sept. 20, 2018), available at, https://www.vice.com/en/article/mbwgxx/texas-tea-partiers-are-freaking-out-over-deep-state-conspiracy-theories.
9 Clara Hendrickson, Affidavit in Michigan lawsuit seeking to overturn election makes wildly inaccurate claims about vote, PolitiFact (Dec. 4, 2020), available at, https://www.politifact.com/factchecks/2020/dec/04/russell-james-ramslandjr/affidavit-michigan-lawsuit-seeking-overturn-electi/; see also, Louis Jacobson & Noah Y. Kim, Giuliani cites affidavit with crucial errors in press conference, PolitiFact (Nov. 20, 2020), available at ,
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A Delaware judge found that Ramsland provided “materially false information” in support
of his claims of vote manipulation.10
Indeed, extensive public reporting since the November 3, 2020 general election
indicates that ASOG has peddled debunked conspiracy theories and error-riddled analyses
in its quixotic quest to prove that election fraud occurred.11 And at a November 2020
“hearing” in Arizona, ASOG employee and self-proclaimed “information warfare officer”
and “expert on ‘how to get in and corrupt these machines to conduct strategic influence
operations’” Phil Waldron “claimed Arizona voting machines were connected to the
internet while they were being used, which is inaccurate” and “repeatedly -- and falsely --
suggested that signatures on mail-in ballots are not verified.”12 https://www.politifact.com/factchecks/2020/nov/20/rudy-giuliani/giuliani-cites-affidavit-crucial-errors-press-conf/ .
10 Page v. Oath Inc., No. S20C-07-030 (Del. Super. Ct. Dec. 18, 2020). 11 See, e.g., Louis Jacobson & Noah Y. Kim, Rudy Giuliani cites affidavit about Michigan
that erroneously includes Minnesota locations, Detroit Free Press (Nov. 21, 2020, 9:02 p.m.), https://www.freep.com/story/news/local/michigan/2020/11/21/fact-check-rudy-giuliani-affidavit-errors/6366011002/ (reporting on errors in affidavit of ASOG employee Russell Ramsland); Clara Hendrickson, Affidavit in Michigan lawsuit makes wildly inaccurate claims about voter turnout in state, Detroit Free Press, (Dec. 4, 2020, 5:06 p.m.), https://www.freep.com/story/news/local/michigan/detroit/2020/12/04/michigan-lawsuit-makes-wild-claims-voter-turnout/3829654001/ (reporting on errors in a different affidavit of ASOG employee Russell Ramsland); Paul Egan, State, company officials dispute report claiming Antrim County tabulators bungled results, Detroit Free Press, (Dec. 14, 2020, 11:48 a.m.), https://www.freep.com/story/news/politics/elections/2020/12/14/michigan-company-officials-dispute-report-antrim-county-voting/6538325002/ (reporting on ASOG’s flawed report in Antrim County, MI); Mardi Link, State officials: Texas firm's report relies on false claims in Antrim County election lawsuit, Traverse City Record Eagle, (Dec. 14, 2020), https://www.record-eagle.com/news/local_news/state-officials-texas-firms-report-relies-on-false-claims-in-antrim-county-election-lawsuit/article_28b45918-3e2c-11eb-a281-8faf2b0daa1d.html (reporting on ASOG’s flawed report in Antrim County, MI); Paul Egan & Clara Hendrickson, Trump tweet wrongly suggests there were defects with Michigan voting machines, Detroit Free Press, (Dec. 15, 2020, 6:41 p.m.), https://www.freep.com/story/news/politics/elections/2020/12/15/trump-fact-check-defect-voting-machines-michigan/3902951001/ (reporting on ASOG’s flawed report in Antrim County, MI); Todd Spanger, Former election security chief for Trump knocks down Antrim County report, Detroit Free Press, (Dec. 16, 2020, 1:40 p.m.), https://www.freep.com/story/news/politics/elections/2020/12/16/antrim-county-report-debunked-by-former-trump-election-official/3923499001/ (“The former acting director of the EAC’s Voting System Testing and Certification Program, Ryan Macias, said the [ASOG Antrim County] report showed “a grave misunderstanding” of the voting system used in Antrim County as well as “a lack of knowledge of election technology and process.”).
12 Ryan Randazzo & Maria Polletta, Arizona GOP lawmakers hold meeting on election outcome with Trump lawyer Rudy Giuliani, Arizona Republic, (Nov 30, 2020, 6:59 p.m.),
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As stated above, upon information and belief, the County’s elections equipment would
be “audited” by Ramsland and Waldron if obtained through the subpoena. See Duda, supra.
Allowing ASOG or any other laboratory that is not certified by the EAC to “audit” Plaintiff
Maricopa County’s tabulation machines and other election equipment risks causing those
machines to be decertified for use in Arizona; infringing on the constitutional guarantee to
the People of Maricopa County to have fair and free elections; and, sowing unfounded
distrust and confusion among the electorate.
H. EVENTUALLY, SENATE PRESIDENT FANN COMES CLEAN AND REVEALS THE PURPOSE OF HER INQUIRY IS TO AUDIT THE 2020 PRESIDENTIAL ELECTION
Senate President Fann and her attorney, Kory Langhofer, gave an interview indicating
that the true purpose of the January 12, 2021, Subpoenas is to audit the November 3, 2020,
general election for president of the United States.13 President Fann stated that she wants
to determine “whether the results” of the November 3, 2020, election for president, “were
accurate.”14 Mr. Langhofer stated that “[t]he Senate also wants a review of ‘spoiled’ ballots
and what was done by election workers to determine the voter intent.”15 This comports
with the Senate’s proposed scope of work for ASOG, which includes performing a hand
count audit of approximately 550,000 ballots.16 https://www.azcentral.com/story/news/politics/elections/2020/11/30/republican-lawmakers-arizona-hold-meeting-rudy-giuliani/6468171002/ (reporting on Arizona “hearing” testimony of ASOG employee Phil Waldron:; Aila Slisco, Trump Campaign Witness Can’t Back Up Claims in Georgia Election Fraud Hearings, Newsweek, (Dec. 3, 2020, 6:15 p.m.), https://www.newsweek.com/trump-campaign-witness-cant-back-claims-georgia-election-fraud-hearings-1552257 (reporting on Georgia hearing testimony of ASOG employee Phil Waldron); Craig Mauger, Why 8 claims from Rudy Giuliani’s Michigan witnesses don’t add up, The Detroit News, (Dec. 4, 2020, 4:26 p.m.), https://www.detroitnews.com/story/news/politics/2020/12/04/why-8-claims-rudy-giulianis-michigan-witnesses-dont-add-up/3824210001/ (reporting on Michigan hearing testimony of ASOG employee Phil Waldron).
13 See Howard Fisher, Capitol Media Services, Tucson.com, “Arizona Senate to conduct own audit of 2020 election results after all,” https://tucson.com/news/state-and-regional/arizona-senate-to-conduct-own-audit-of-2020-election-results-after-all/article_9bfb83c9-f60d-5a4e-b81f-36afc5577c7a.amp.html?__twitter_impression=true.
14 Id. 15 Id. 16 Jeremy Duda, AZMirror, “Fann picks Trump-allied firm with history of false election
statements to audit Maricopa election,” (February 3, 2021),
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I. DESPITE ALL THE COOPERATION AND EFFORT FROM THE SUPERVISORS, THE SENATORS PLAN TO HOLD THEM IN CONTEMPT WITHOUT NOTICE OR AN OPPORTUNITY TO BE HEARD
Upon information and belief, the Senate is considering voting on Monday, February 8,
2021, to hold the Supervisors in contempt of the January 12, 2021, Subpoena--despite the
fact that the Chairman of the Board of Supervisors appeared for the hearing that the
subpoena commanded him to appear for (a hearing the Senate did not schedule or bother to
show up to), and notwithstanding the substantial efforts the Supervisors have made to
lawfully provide the Senate the documents and information they have demanded. Worst of
all, however, the Senate plans to take this drastic action--punishable by incarceration--
without precisely explaining how exactly the Supervisors are in contempt or providing
them a reasonable opportunity to respond to those charges.
II. THE COURT SHOULD ENTER A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
The four criteria the Court should consider in determining whether to issue a preliminary
injunction are:
1. The degree of likelihood that the Supervisors will succeed at trial on the merits;
2. The possibility of irreparable injury to the Supervisors not remediable by damages if the requested relief is not granted;
3. The balance of hardships; and
4. Whether public policy favors the injunction.
See Shoen v. Shoen, 167 Ariz. 58, 63, (App. 1990). The Supervisors can meet their burden
of proof, warranting injunctive relief, by establishing “either (1) probable success on the
merits and the possibility of irreparable injury; or (2) the presence of serious questions and
the balance of hardships tips sharply” in the Supervisors’ favor. Shoen, 167 Ariz. at 63
(citation and quotations omitted).
https://www.azmirror.com/2021/02/03/fann-picks-trump-allied-firm-with-history-of-false-election-statements-to-audit-maricopa-election/ (embedded “Scope of Work” document).
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Moreover, the showing required for a preliminary injunction is less than that required
for summary judgment. See, e.g., Powell-Cerkoney v. TCR - Montana Ranch Joint Venture,
176 Ariz. 275 (App. 1993) (“The party requesting a preliminary injunction assumes a lesser
burden of proof to show probable success on the merits than does a party moving for
summary judgment, who must establish entitlement to final judgment on the merits”).
Because of the compressed nature of preliminary injunction proceedings, a preliminary
injunction hearing “focuses primarily on balancing the four equitable criteria.” Powell-
Cerkoney, 176 Ariz. at 280. A preliminary injunction hearing is not, after all, a trial on the
merits. See, e.g., Los Angeles Memorial Coliseum Commission v. National Football
League, 634 F.2d 1197, 1200 (9th Cir. 1980) (distinguishing between “the grant of a
preliminary injunction” and “a final decision on the merits”); U.S. v. Local 560 (I.B.T.), 974
F.2d 315, 330 (3rd Cir. 1992) (“a decision on a preliminary injunction is, in effect, only a
prediction about the merits of the case,” not a determination of the merits) (emphasis added).
In our case, the Supervisors easily meet their burden of proof, compelling entry of a
TRO and preliminary injunction against Defendants.
A. THE SUPERVISORS WILL LIKELY SUCCEED ON THE MERITS
The Supervisors will succeed on the merits for three reasons. First, a vote of contempt
that fails to give them notice of the allegations giving rise to the contempt, and an
opportunity to address those charges, deprives the Supervisors of due process. If this Court
agrees, it need not address any other issue in this action before entering the injunctive relief
the Supervisors seek.
Second, the subpoenas at issue are invalid for a myriad of reasons, and thus, a finding
of contempt is impossible.
Third, and in any event, the Supervisors complied with the subpoenas at issue to the
fullest extent possible as permitted by law.
1. THE SENATORS CANNOT HOLD THE SUPERVISORS IN CONTEMPT WITHOUT FIRST PROVIDING THEM ADEQUATE NOTICE OF WHY THEY ARE IN CONTEMPT AND AN OPPORTUNITY TO BE HEARD
The constitution “imposes no general barriers to the legislative exercise of” the subpoena
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power, including the ability to punish contemptuous conduct. Groppi v. Leslie, 92 S.Ct.
582, 585 (1972). But the due process clause of the constitution does nonetheless restrict the
legislative contempt power. In that regard, the Supreme Court of the United States, when
reversing a Wisconsin legislature’s attempt to exercise its power of contempt in light of
facts not so different from our own, aptly summarized the importance of due process in any
such proceeding:
This Court has often recognized that the requirements of due process cannot be ascertained through mechanical application of a formula. See, e.g., Cafeteria and Restaurant Workers Union, Local 473, AFL—CIO v. McElroy, 367 U.S. 886, 894—895, 81 S.Ct. 1743, 1748—1749, 6 L.Ed.2d 1230 (1961); Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960). Mr. Justice Frankfurter, in another context, aptly stated that due process ‘is compounded of history, reason, the past course of decisions, and stout confidence in the strength of the democratic faith which we profess. . ..’ Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 162—163, 71 S.Ct. 624, 644, 95 L.Ed. 817 (1951) (concurring opinion). Courts must be sensitive to the nature of a legislative contempt proceeding and the ‘possible burden on that proceeding’ that a given procedure might entail. Hannah v. Larche, 363 U.S., at 442, 80 S.Ct., at 1515. Legislatures are not constituted to conduct full-scale trials or quasi-judicial proceedings and we should not demand that they do so although they possess inherent power to protect their own processes and existence by way of contempt proceedings. For this reason, the Congress of the United States, for example, no longer undertakes to exercise its contempt powers in all cases but elects to delegate that function to federal courts. 52 Stat. 942, 2 U.S.C. ss 192—194.
The potential for disrupting or immobilizing the vital legislative processes of State and Federal Governments that would flow from a rule requiring a full-blown legislative ‘trial’ prior to the imposition of punishment for contempt of the legislature is a factor entitled to very great weight; this is particularly true where the contemptuous conduct, as here, is committed directly in the presence of the legislative body. The past decisions of this Court strongly indicate that the panoply of procedural rights that are accorded a defendant in a criminal trial has never been thought necessary in legislative contempt proceedings. The customary practice in Congress has been to provide the contemnor with an opportunity to appear before the bar of the House, or before a committee, and give answer to the misconduct charged against him. See Jurney v. MacCracken, 294 U.S., at 143—144, 55 S.Ct., at 376—377; Kilbourn v. Thompson, 103 U.S., at 173, 174; Anderson v. Dunn, 6 Wheat., at 209—211; Marshall v. Gordon, 243 U.S. 521, 532, 37 S.Ct. 448, 449, 61 L.Ed. 881 (1917). Such would appear to have been the general practice in colonial times, and in the early state legislatures. This practice more nearly resembles the traditional right of a criminal defendant to allocution prior to the imposition of sentence than it does a criminal prosecution. See Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961).
In this case, however, there is no occasion to define or delineate precisely what process is due and must be accorded to a contemnor prior to the legislative imposition of punishment for contemptuous conduct. Here, the Wisconsin
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Assembly, two days after the conduct had occurred, found petitioner in contempt and sentenced him to confinement without giving him notice of any kind or opportunity to answer. There is no question of his having fled or become otherwise unavailable for, as we have noted, he was confined in the county jail at the time, and could easily have been given notice, if indeed not compelled, to appear before the Assembly. We find little in our past decisions that would shed light on the precise problem, but nothing to give warrant to the summary procedure employed here, coming as it did two days after the contempt. Indeed, we have stated time and again that reasonable notice of a charge and an opportunity to be heard in defense before punishment is imposed are ‘basic in our system of jurisprudence.’ In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682 (1948). See, e.g., Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S., at 143, 164—165, 171—172, 178, 185, 71 S.Ct., at 633, 644—645, 648—649, 652, 655 (concurring opinions of Black, Frankfurter, Douglas, and Jackson, JJ.); Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948). We have emphasized this fundamental principle where rights of less standing than personal liberty were at stake. E.g., Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Morgan v. United States, 304 U.S. 1, 18, 58 S.Ct. 773, 776, 82 L.Ed. 1129 (1938); Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914). In Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), the Court Stated: ‘Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.’ 339 U.S., at 313, 70 S.Ct., at 656.
Although this language was addressed to judicial adjudication, historical practice would indicate that legislatures themselves have recognized the value of prior notice and hearing in cases of legislative contempt.
In exercise of the right to be heard, however briefly—the length and nature of which would traditionally be left largely to the legislative body—the putative contemnor might establish, for example, that it was a case of mistaken identity, or, also by way of affirmative defense, that he was mentally incompetent. Other matters in explanation or mitigation might lessen the harshness of the legislative judgment or avoid punishment altogether.
***
Where, however, the contemptuous episode has occurred two days previously, it is much more difficult to argue that action without notice or hearing of any kind is necessary to preserve order and enable a legislative body to proceed with its business.
The function of the contempt process by a legislative body is perhaps more related to deterrence of those disposed to create disorders than to restoring order. But the deterrence function can equally be served—perhaps even better—by giving notice and bringing the contemnor before the body and giving opportunity to be heard before being declared in contempt and sentenced.
***
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Moreover, in such a situation, the contemnor has normally been given an opportunity to speak in his own behalf in the nature of a right of allocution. See Levine v. United States, 362 U.S. 610, 613—614, 80 S.Ct. 1038, 1041—1042, 4 L.Ed.2d 989 (1960); Brown v. United States, 359 U.S. 41, 52, 79 S.Ct. 539, 547, 3 L.Ed.2d 609 (1959); United States v. Sacher, 182 F.2d 416, 418 (CA2 1950), aff’d, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717 (1952). Even in those circumstances, as we have noted, the conduct and utterance might be found excusable by a legislature or a court should it develop that the contemnor was suffering from some mental disorder rendering him unable to conform his conduct to requirements of the law and conventional behavior. Where, however, a legislative body acts two days after the event, in the absence of the contemnor, and without notice to him, there is no assurance that the members of the legislature are acting, as a judge does in a contempt case, on the basis of personal observation and identification of the contemnor engaging in the conduct charged, nor is there any opportunity whatsoever for him to speak in defense or mitigation, if he is in fact the offender.
At a very early stage in our history this Court stated that the legislative contempt power should be limited to ‘(t)he least possible power adequate to the end proposed.’ Anderson v. Dunn, 6 Wheat., at 231; In re Oliver, 333 U.S., at 274, 68 S.Ct., at 508. While a different result might well follow had the Wisconsin Assembly acted immediately upon occurrence of the contemptuous conduct and while the contemnor was in the chamber, or nearby within the Capitol building, as in Terry, we conclude that the procedures employed in this case were beyond the legitimate scope of that power because of the absence of notice or any opportunity to respond. The judgment of the Court of Appeals is reversed.
Reversed.
Groppi, 92 S.Ct. at 585-588 (emphasis added).
In other words, before a legislature can hold someone in contempt, it must provide basic
due process in the form of adequate notice and an opportunity to be heard. This has not
remotely happened here. Nobody has offered a modicum of explanation for how exactly
or why the Supervisors have not complied with the January 12, 20201, Subpoenas. Nor
has the Senate provided the Supervisors any opportunity to appear, explain their position,
or otherwise respond to the Senators’ heretofore unknown reasons for seeking contempt.
For these reasons, the Senate cannot lawfully hold the Supervisors in contempt, let alone
incarcerate them for something they do not completely understand and have had no
opportunity to formally address.
2. THE JANUARY 12, 2021, SUBPOENAS ARE FACIALLY INVALID
The January 12, 2021, Subpoenas are invalid, because they compelled attendance and
the production of information at a non-existent hearing and for the clear purpose of seeking
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documents instead of testimony.
The Senators commanded the Supervisors to attend a hearing at the Senate, and to
provide testimony, at 9:00 a.m. on January 13, 2021. The Supervisors complied, and sent
Chairman Jack Sellers and their attorney to appear at the Senate as commanded. But there
was no actual hearing noticed or scheduled, the Senate would not permit Chairman Sellers
to testify, and of critical importance: he was asked to leave. The law is clear: a subpoena
must require a witness to attend and testify at a specific time and place. A.R.S. § 41-1151.
See also A.R.S. § 41-1153 (stating that contempt proceedings may be brought against “a
witness neglects or refuses to obey a legislative subpoena, or, appearing, neglects or refuses
to testify,” thereby recognizing that refusing to attend or testify are the actions that can lead
to contempt charges). In other words, to be lawful, a legislative subpoena must be issued in
conjunction with an actual hearing at which the subpoenaed person can attend and testify.
Here, very clearly there was no intent to have any sort of hearing, because one was never
actually set and when Chairman Sellers arrived he was told to leave.
3. THE JANUARY 12, 2021, SUBPOENAS ARE VOID BECAUSE THEY WERE ISSUED FOR AN IMPROPER PURPOSE
The Senate has only those powers granted to it by the Constitution or authorized by
statute. And a legislative subpoena is only proper if it is (1) authorized by law, (2) serves a
valid legislative purpose, and (3) seeks witnesses or materials pertinent to the subject matter
of the investigation. See Conn. Indem. Co. v. Superior Court, 23 Cal. 4th 807, 813, 3 P.3d
868, 872 (2000) (citing Wilkinson v. United States, 365 U.S. 399, 408-409 (1961)). The
January 12, 2021, Subpoenas meet none of these requirements.
In Arizona: “A subpoena may be issued by the presiding officer of either house or the
chairman of any committee before whom the attendance of a witness is desired. The
subpoena is sufficient if it states whether the proceeding is before the senate, house of
representatives or a committee, is addressed to the witness, requires the attendance of the
witness at a certain time and place, and is signed by either presiding officer or a committee
chairman. The subpoena may be served and returned in like manner as civil process.”
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A.R.S. § 41-1151 (emphasis added). Moreover, the legislature or any of its committees may
subpoena a person “to attend as a witness” and “to produce, upon reasonable notice, any
material and relevant books, papers or documents in his possession or under his control . . .
.” A.R.S. § 41-1154 (emphasis added).
In our case, the January 12, 2021, Subpoenas commanded a witness to appear before the
Senate, at a specific time and place just 17 hours after the subpoena was served. But no
hearing had been noticed or scheduled at that time and place, no hearing occurred, and the
witness who appeared in response to the subpoena--Chairman Jack Sellers--was not
allowed to testify. No law authorizes a legislative subpoena that does not require a witness
to testify at a specific time and place or otherwise at least inetned that the testimony be
given or the hearing actually occur. For this reason alone, the January 12, 2021, Subpoenas
violate Arizona law.
Moreover, the January 12, 2021, Subpoenas provided just 17 hours’ notice before the
(never actually meant to occur) hearing at which the Supervisors were to testify and also
produce, among other things, all of Maricopa County’s tabulation machines and some 2.1
million paper ballots. It is beyond cavil to any person that this timeframe--especially when
the hearing itself was a sham never actually intended to occur--is patently unreasonable
under these facts. See A.R.S. § 41-1154 (requiring “reasonable notice” before one must
attend or produce documents); see also Beauchamp v. Wilson, 21 Ariz. App. 14, (1973)
(upholding trial court’s order quashing subpoena where the subpoena was served “just a
few” days before trial and documents to be produced would have taken a significant amount
of time to assemble); Donoghue v. Orange Cty., 848 F.2d 926, 931 (9th Cir. 1987)
(upholding order quashing subpoena for extensive documents to a California County served
one week before trial where county could not be expected to compile the request documents
in the small amount of time provided); United States v. Christensen, No. CR-14-08164-
PCT-DGC, 2020 WL 6545135, at *2 (D. Ariz. Nov. 6, 2020) (“As noted, the government
emailed the subpoena to Defendant on October 22. Doc. 264 at 1. The subpoena commands
the production of numerous documents relating to Forest Aire by October 26, only four days
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after Defendant received the subpoena. This four-day period is not a reasonable amount of
time for Defendant to comply.”); Hernandez v. City of Corpus Christi, No. C–10–186, 2011
WL 2194254, at *1 (S.D. Tex. June 6, 2011) (quashing subpoena duces tecum that allowed
10 days for compliance); Dixon v. Greyhound Lines, Inc., No. CIV.A. 13-179-JWD, 2014
WL 6474355, at *4 (M.D. La. Nov. 19, 2014) (“Plaintiff served Dr. Warner on August 27,
2014 with a subpoena that required her to produce documents by September 5, 2014.
Essentially, Plaintiff unreasonably gave Dr. Warner only 9 days to comply.”).
Further, the January 12, 2021, Subpoenas do not serve or further a valid legislative
purpose. We know that the Senators are using the January 12, 2021, Subpoenas to
essentially conduct recount and audit of the 2020 presidential election. But there is no
legislative authority permitting the Senate to second-guess, recount, or audit election results
or related election equipment (forensically or otherwise). There is also no legal authority
permitting the Senate to step into the shoes of our judiciary and second-guess six superior
court judges, one federal district court judge, and seven Arizona Supreme Court Justices
who collectively heard a total of seven election-related contests and found no evidence of
wrongdoing on the part of Maricopa County, its elections officers, or the electronic voting
system it uses, or any basis for decertifying Arizona’s election or awarding Arizona’s eleven
presidential electors to President Trump.
Finally, the witnesses or material subpoenaed have no pertinence to the subject matter
of the investigation. Indeed, as far as we know, there is no formal open Senate investigation
into the 2020 general election. Instead, it is clear the Senators seek to further an Ultra Vires
act: an unauthorized recount and audit of an election meant to second guess the decisions of
our state and federal judiciary in Arizona. This, however, is not something the law
authorizes the Senate to do.
4. LEGISLATIVE SUBPOENAS CANNOT COMPEL THE PRODUCTION OF MACHINES AND EQUIPMENT
“When interpreting a statute, [a court’s] primary goal is to ascertain and give effect to
the legislative intent.” Mercy Healthcare Ariz., Inc. v. AHCCCS, 181 Ariz. 95, 98 (App.
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1994). And critically, it is axiomatic that the legislature means what it says. See Padilla v.
Indus. Comm’n, 113 Ariz. 104, 106 (1976) (“fundamental is the presumption that what the
Legislature means, it will say”).
The legislative subpoena power is limited to commanding witnesses to appear at
hearings to testify, and to produce at those hearings, “material and relevant books, papers
or documents[.]” A.R.S. § 41-1154. This does not include machines and equipment, let
alone tabulators, computers, routers, and other electronics. Had the legislature meant to
permit legislative subpoenas to encompass machinery, it would have so. But the legislature
made no such proclamation, and the Senators cannot unilaterally rewrite the law by fiat to
suit their agenda.
5. THE JANUARY 12, 2021, SUBPOENAS CANNOT COMPEL THE PRODUCTION OF BALLOTS OR BALLOT IMAGES
Again, the legislature means what it says. Padilla, 113 Ariz. at 106. And courts
“presume that the legislature does not enact superfluous or reiterative legislation.” Lavidas
v. Smith, 195 Ariz. 250, 255, ¶ 18 (App. 1999) (quoting Phoenix Newspapers, Inc. v. Dept.
of Corrections, 188 Ariz. 237, 244 (App. 1997)). Moreover, our legislature “is presumed
to know existing law when it enacts a statute.” Lavidas, 195 Ariz. at 254, ¶ 17 (quoting
Wareing v. Falk, 182 Ariz. 495, 500 (App. 1995)). Thus, statutes of general application do
not nullify those statutes providing specific statutory authority or discretion. See Mercy
Healthcare Ariz., Inc., 181 Ariz. at 100 (“A basic principle of statutory interpretation
instructs that specific statutes control over general statutes,” and “when a general and a
specific statute conflict, we treat the specific statute as an exception to the general, and the
specific statute controls”).
First, the Arizona Constitution commands that ballots be kept secret, and provides that
Arizonans have a constitutional right to a secret ballot. Ariz. Const. art. VII, § 1. The
legislature cannot overcome this constitutional mandate through the legislative subpoena
statutes.
Second, the specific body of law addressing the photographing and collection and
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disclosure of ballots supersedes the general legislative subpoena power (and had the
legislature wanted to carve out an exception to these more specific laws, it could have
chosen--but did not choose--to do so). For example:
• A.R.S. § 16-515(G) makes it illegal to take photographs within 75 feet of voting
locations while voters are voting.17 A.R.S. § 16-1005(H), (I), makes it unlawful
to possess another’s voted early ballot, unless the possessor is an election official,
a United States postal worker or other worker authorized to transmit the U.S.
mail, or the voter’s family member, household member, or caregiver.18
• A.R.S. § 16-1018(4) makes it unlawful to “[s]how another voter’s ballot to any
person after it is prepared for voting in such a manner as to reveal the contents[.]”
There are only two exceptions: one may show her own ballot to someone assisting
her with voting, and one may post to the internet a picture of her own early vote-
by-mail ballot. Id. Otherwise, if one shows another’s voted ballot to someone—
the very thing that this subpoena commands the Supervisors to do—she has
broken the law.
• The Arizona Elections Procedure Manual,19 which has the force of law, A.R.S.
16-452, cites to A.R.S. 16-624(A) and commands that “[a]fter the county canvass
is complete, the officer in charge of elections must seal the voted ballots and
deliver these ballots and official returns to the County Treasurer (or a secure
facility contracted by the County Treasurer) for secure storage.”
• A.R.S. § 16-624 mandates that the ballots be kept under seal and eventually
destroyed, they cannot be unsealed absent a court order, which can only be
17 Notably, the law does not prohibit “taking photographs of a voter with her ballot,” or
“taking photographs that would tie a specific ballot to a specific voter.” The law prohibits photography in voting locations, and so taking a photograph of someone’s voted ballot—even with no voter in the photograph—would be unlawful.
18 Notably, the possession of another’s voted early ballot is unlawful regardless of whether the possessor knows the identity of the voter who voted that particular ballot. Id.
19 The current edition of the Arizona Elections Procedures Manual is available at https://azsos.gov/sites/default/files/2019_ELECTIONS_PROCEDURES_MANUAL_APPROVED.pdf.
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granted in limited circumstances not applicable here.
In our case, turning over ballots and ballot images to the Senators is simply unlawful.
Indeed, the law’s command to protect the secrecy of the ballot after elections except in
times of recounts or contests applies equally to digital images of ballots. See A.R.S. § 16-
625 (“The officer in charge of elections shall ensure that electronic data from and electronic
or digital images of ballots are protected from physical and electronic access, including
unauthorized copying or transfer, and that all security measures are at least as protective as
those prescribed for paper ballots.”). In the end, the Senators unlawfully seek access to
private ballots in order to second guess that which several courts have already addressed
and to engage in an unauthorized de facto recount of the Election when there is no legal
authority for such a recount and all proper election contests have been addressed in court
(where they belong). Worse, once ballots are provided to the committee and are no longer
Maricopa County’s custody and control, the ballots will no longer be protected and,
arguably, will be subject to disclosure pursuant to any public records request made to the
Senate--a further violation of the Constitution and statutory law. Thus, for all these reasons,
the January 12, 2021, Subpoenas are unlawful.
6. EVEN IF THE JANUARY 12, 2021, SUBPOENAS ARE VALID, THERE CAN BE NO CONTEMPT BECAUSE THE SUPERVISORS COMPLIED TO THE FURTHEST EXTENT THE LAW WILL ALLOW
The Supervisors sent a representative to appear and testify only to be told to leave
because no hearing was actually scheduled. The Supervisors have provided all the
documents and information responsive to the January 12, 2021, Subpoenas to the extent the
law will allow the Supervisors to do so. Anything withheld is withheld because the law
mandates the Supervisors do so. Thus, they cannot be said to have acted in contempt.
B. THE SUPERVISORS AND THE PUBLIC THEY SERVE WILL SUFFER IRREPARABLE INJURY IF THE COURT DOES NOT ENJOIN THE SENATE
The Supervisors are elected officials. They serve the public. The Senators have made
it clear that they desire (if not intend) to fast track a contempt finding and secure the
incarceration of the Supervisors. For example, in a recent radio interview, Chairman
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Petersen indicated that a contempt finding will lead to an the arrest of the Supervisors.20
And in another article, Representative Mark Finchem declared Senate President Fann
intends to have the Supervisors incarcerated.21
If permitted to be arrested based on their actual good faith compliance with an otherwise
unlawful and improper subpoena, then (1) the Supervisors will be deprived of their liberty
without a modicum of due process (not to mention suffer potentially irreversible
reputational damage), and (2) the public will be deprived of necessary service of their duly
elected members of the Maricopa County Board of Supervisors. This deprivation of liberty
and public service is especially potent under our facts, because the Supervisors have
completely complied with the Senators’ demands--as improper and unlawful as they have
been-to the fullest extent permitted by law.
C. THE BALANCE OF HARDSHIPS STRONGLY FAVORS THE SUPERVISORS AND THE PUBLIC THEY SERVE
The balance of hardships favors the Supervisors and the citizens of Maricopa County.
The Senators seek to further perpetuate as post-election conspiracy frenzy by incarcerating
several public servants who have done nothing other than fully and completely comply with
the Senators’ every whim to the extent the law permits the Supervisors to do so. Now,
claiming some heretofore undescribed slight or deficiency, the Senators want to declare the
Supervisors in contempt and jail them while simultaneously denying Maricopa County’s
citizens the benefit of the elected Supervisors’ public service.
Conversely, there is no hardship on the Senators by safeguarding the Supervisors from
the unconstitutional indignity of being held in contempt and incarcerated without a
modicum of publicly scrutinized due process. To the contrary, it will be business as usual
20 See https://knst.iheart.com/featured/garret-lewis/content/2021-02-04-garret-talks-to-
sen-warren-petersen-about-arresting-maricopa-county-bos/ (last accessed Feb. 7, 2021). 21 See https://arizonarepublic-az-app.newsmemory.com/?publink=07109388d (last
accessed Feb. 7, 2021) (“‘Once that passes, the Senate president will instruct the sergeant at arms to go to their offices and arrest them,’ Rep. Mark Finchem, R-Oro Valley, told former Trump adviser Steve Bannon on Bannon’s podcast Feb. 4.”).
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for the Senate. President Biden will still hold office. The 2020 general election will still
remain decided. Nothing will change.
Thus, the balance of hardships unquestionably favors the Supervisors and the public they
were elected to serve.
D. PUBLIC POLICY COMPELS INJUNCTIVE RELIEF.
Public policy abhors wrongful incarceration, baseless character assassination, and
deprivation of duly elected public service without first affording the accused a modicum of
due process. Public policy equally abhors holding someone in contempt of the legislature
when the subpoena giving rise to the contempt charge is itself unlawful and when, even so,
the alleged offender complied with that subpoena to the fullest extent the law would permit.
The Supervisors are entitled to notice of why they are in contempt and an opportunity to
publicly address those allegations. The citizens who elected the Supervisors deserve to have
them free and performing their civic duties. For these reasons, in light of our fat, public
policy compels injunctive relief
Conclusion
For the foregoing reasons, this Court should enter an Order to Show Cause requiring the
Senators to show cause why the Supervisors should not be awarded the injunctive relief they
seek, and (b) award Plaintiffs the injunctive relief they seek.
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RESPECTFULLY SUBMITTED: February 8, 2021. SHERMAN & HOWARD L.L.C.
BY: /s/Craig Morgan
John Alan Doran Craig A. Morgan Attorneys for Plaintiff Maricopa County
HINSHAW & CULBERTSON LLP
BY: /s/Stephen W. Tully
Stephen W. Tully Attorneys for Plaintiff Maricopa County ALLISTER ADEL MARICOPA COUNTY ATTORNEY
BY: /s/Thomas P. Liddy
Thomas P. Liddy Emily Craiger Joseph I. Vigil Joseph J. Branco Joseph E. LaRue Attorneys for Plaintiff Maricopa County
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VERIFICATION
STATE OF ARIZONA ) ) ss. County of Maricopa )
I, Jack Sellers, for my unsworn verification under penalty of perjury state as
follows:
I have read the foregoing Application for Temporary Restraining Order/
Preliminary Injunction (“Application”) to which this verification is attached and know the
contents thereof. I am authorized to make, and hereby make, this Verification on behalf of
the Maricopa County Board of Supervisors. The factual statements contained therein are
true and correct, except those made upon information and belief, which I believe to be true.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on February 7, 2021.
Jack Sellers
Active/52873781.2 31
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ORIGINAL of the foregoing efiled this 8th day of January, 2021 COPY of the foregoing delivered via email this 8th day of January, 2021 to: Judge Mikitish, at: [email protected] Judge Thomason, at: [email protected] Judge Gates, presiding civil judge, at: [email protected] COPY of the foregoing was e-served via AZ Turbo Court, and emailed, this 8th day of January, 2021, to: Kory Langhofer, Esq. Thomas Basile, Esq. StateCraft PLLC 649 North Fourth Avenue, First Floor Phoenix, AZ 85003 [email protected] [email protected] Attorneys for Defendants Arizona Senate President Karen Fann, Senate Judiciary Committee Chairman Warren Petersen, and the Senate Judiciary Committee James Barton Jacqueline Mendez Soto Barton Mendez Soto PLLC 401 West Baseline Road, Suite 205 Tempe, Arizona 85283 [email protected] [email protected] Attorneys for the Democratic Members of the Senate Judiciary Committee
By: /s/ Craig A. Morgan
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