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Arizona Senate, Maricopa Co. mull next steps in standoff over routers subpoenaed in vote audit

County cites security risks, but judge in February ruled that confidential information is covered by subpoenas.

Updated: May 8, 2021 - 1:33pm

The Facts Inside Our Reporter’s Notebook

A standoff occurring in Arizona's ongoing audit of the 2020 election may be resolved by the interpretation and enforcement of a state judge's February ruling that greenlit the audit itself in the first place. 

Maricopa County — the state's largest county and the subject of the court-approved audit — announced this week that it would refuse to surrender numerous routers included as part of a subpoena from the Republican-controlled state Senate. 

Senate Republicans in their subpoena had demanded access to all county-owned routers "used in connection with the administration of the 2020 election." Maricopa officials responded this week by claiming that the routers used by the county to handle election data also serve dozens of other departments, with some of that data constituting a potential major security risk for both state and federal agencies. 

The routers include "critical law enforcement data that, by law, cannot be disclosed, as well as Maricopa County residents' protected health information and full social security numbers," Maricopa spokesman Fields Moseley told Just the News this week. 

Erika Flores, a spokeswoman for the county's elections department, on Friday offered further clarification on the alleged security issues posed by the routers. 

"Providing county level routers is extremely dangerous as it would provide a mapping of how the county network is connected, addresses of critical internal assets, router system configuration, and the ability to see administrative usernames and possibly passwords," she claimed. 

"If real time access was given to the routers in production it's possible that some traffic going through them could be visible, which includes law enforcement. These are critical systems behind multiple layers of protection and access is severely limited to them." 

In February, judge said confidential material was responsive to subpoena 

Yet the ultimate success or failure of the county's position likely depends upon the interpretation — and potential enforcement — of a February ruling from a state judge affirming the legitimacy of the state Senate's subpoenas. 

In his decision that month, Maricopa County Superior Court Judge Timothy Thomason ruled against Maricopa County officials who had sought to block the subpoena on various procedural and statutory grounds. 

Addressing claims by county officials that they were not obligated to surrender confidential material requested by the subpoena, Thomason said: "The Subpoenas are, in essence, the equivalent of a Court order, requiring production of certain information. The County cannot avoid a subpoena based on statutes that require that the material being subpoenaed be kept confidential."

The issue necessarily turns on whether or not Thomason's decision applies to the purportedly classified material contained in the routers, much of which the county claims has nothing to do with election management. 

The enforcement of that decision may ultimately fall to the office of state Attorney General Mark Brnovich. Last month Brnovich, a Republican, indicated at least some sympathy with the audit when he refused a demand from Arizona Secretary of State Katie Hobbs, a Democrat, to investigate the audit itself. 

Brnovich's office did not respond to queries asking whether or not it was considering enforcing the subpoena in light of Thomason's ruling. 

Michael Saks, a professor in the Arizona State University Sandra Day O'Connor College of Law, declined to speculate on the merits of either side's case, but he suggested that the dispute will likely play out in a legally predictable fashion. 

"The way to enforce or resolve disputes over [subpoenas] is for the party that wants the info to go back to court and file a motion asking for a follow-up order, sanctions, etc. against an allegedly non-complying party," Saks said. "The two sides will get to debate the merits of their respective positions and get a ruling. Then the unhappy side has the option to appeal the ruling to the next court up."

Derek Bambauer, a law professor at the University of Arizona, noted that Thomason's decision established itself as "a narrow declaratory ruling about the legality of the subpoenas" rather than an enforcement of the subpoenas themselves. 

"So, the ruling applies unless and until the defendants appeal it," he said. "But, its practical effect is limited: there is no order that the County turn over the requested materials, and there seems to be some real doubt as to whether state courts could lawfully issue such an order."

"Of course, this doesn’t mean that the County is home free and dry," he added. "The Senate could vote to hold the County officials in contempt ... and then arrest them." The Senate could also "refer the matter to the attorney general for prosecution," he said. 

Paul Bender, the dean emeritus for the Sandra Day O'Connor College of Law, said he doubted the matter would ultimately be raised in a courtroom. 

"Any litigation would be in state court — probably would start in Superior Court, but the plaintiff might try a special action in the Supreme Court directly, which the Supreme Court would have discretion to consider," he said. But "I doubt that there will be litigation," he added. "The parties tend to work things out in these situations."

Regarding Thomason's ruling, Bender said that "the court was ruling on the contention that the subpoena violates the secret ballot provisions of the Constitution and laws."

"If there is some other claim to confidentiality -- for example, that production of some of the subpoenaed material would violate the lawyer-client privilege -- I don't think that the court's opinion means to resolve that claim," he said. "I think it only means to say that secret ballot laws and rules are not violated by the subpoena."

Former Arizona Secretary of State Ken Bennett, who currently serves as the liaison between the auditors and the state Senate, told Just the News this week that the Senate will work to obtain the routers in spite of the county's refusal. Moseley, meanwhile, said the county "continue[s] to study this issue."

The audit has thus far been carried out under the direction of Florida-based security firm Cyber Ninjas, which was hired by the Arizona Senate to conduct the day-by-day management of the procedure, including the hand counting of 2.1 million ballots. 

Cyber Ninjas has been criticized in part for refusing to disclose its major funders. The Arizona Senate agreed to pay the agency $150,000 from its own coffers, though the costs of the audit itself will significantly exceed that amount. 

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