Appeal ballot subpoena decision
Politically, I understand why the Republican members of the Maricopa County Board of Supervisors decided not to appeal the decision by Judge Timothy Thomason giving state Senate Republicans possession of ballots and voting machines.
The supervisors were in the firing line of Trumpeteers for supposedly rigging the presidential election and thwarting an investigation that would expose the perfidy. In Donald Trump’s GOP, there is no reward, and ample punishment, for integrity and honesty. Thomason’s ruling gave the supervisors a quasi-honorable way to get out of reach of the fusillade.
Nevertheless, the decision not to appeal is regrettable, for two reasons.
First, Thomason’s ruling embraces a breathtakingly broad, and dangerous, view of the scope of the Legislature’s subpoena power.
Second, Republicans in the Senate cannot be trusted with the ballots or voting machines. They have already indelibly discredited any election review they might conduct.
State law says that, after an election, ballots are to be secured and only released subject to a court order, presumably some sort of election dispute.
Thomason opined that, while the statute only specifies the release of the ballots upon a court order, it doesn’t expressly preclude release from other mechanisms, such as a legislative subpoena.
This is an arch bit of pettifogging. The statutes specify what is to be done with ballots after an election, with language that, in a plain reading, doesn’t include turning them over to the Legislature.
The Legislature can change the statute, and a bill so doing has passed the Senate. But there is a check on such a grab for ballots. Any change in the law would be subject to referendum. If the body politic didn’t want legislators to get their hands on ballots, a probable sentiment, petitions could be circulated suspending the new law until voters got a chance to pass judgment on it.
By reading into the existing statute something that doesn’t exist, a right for legislators to demand the ballots, Thomason eviscerated this constitutional check on a legislative power grab.
The dangerous part of Thomason’s ruling was where he declared that a legislative subpoena is “in essence, the equivalent of a Court order.” A legislative subpoena is really an investigative demand, which is not the same as an order issued by a judge independent of the investigative agency. In other contexts, they are subject to review by real judges.
State law gives legislative subpoena power to presiding officers and committee chairmen acting individually and independently. Subpoena authority isn’t limited to public bodies, such as the Board of Supervisors, or public materials, such as ballots and voting machines. It extends to private parties and private information, anything a presiding officer or committee chair deems relevant to legislative activity.
There are 26 legislators who are either a presiding officer or a committee chair. According to Thomason’s decision, that means that there are 26 legislators with the power of a judge to commandeer any information or material from anyone, subject to incarceration, without any meaningful review by an actual judge.
Thomason’s decision has no precedential weight. It doesn’t bind other judges in future cases. And if the issue ever gets to an appellate level, I can’t imagine acceptance of the view that subpoenas issued by individual legislators have the same legal force as an order issued by a judge. But there are 26 legislators who now have reason to believe that they have that authority.
While Thomason was appropriately deferential, as a judge, regarding whether there was a legitimate legislative purpose behind the subpoena, a pundit isn’t so constrained. The election review by Senate Republicans is a sham.
The ostensible legislative purpose is to review election procedures for future improvement. But if that were really the purpose, the results from Maricopa County wouldn’t be the only ones under review. Statewide results would be examined.
Maricopa County is where Joe Biden defeated Trump in Arizona, and where Trumpeteer conspiracy-mongers have spun their tales.
Thomason seemed to comfort himself in his ruling with the fact that it is now too late to overturn the election. But that is no longer the objective. The objective is to discredit the result, to give support to Trump’s claim that the election was stolen.
Any doubt about that was eradicated when it was learned that Senate President Karen Fann intended to hire some of the conspiracy-mongers to do the review.
I’ve seen some dark days in Arizona politics. Giving the Trumpeteers in the Senate Republican caucus possession of voting machines and over 2 million ballots may lead to the darkest yet.