Clerk of the Superior Court *** Electronically Filed *** T. Hays, Deputy 2/8/2021 10:17:42 AM Filing ID 12518844 Law Offices 1 Sherman & Howard L.L.C. 201 East Washington Street, Suite 800 2 Phoenix, Arizona 85004-2327 Telephone: (602) 240-3000 3 Fax: (602) 240-6600 (AZ Bar firm no. 00441000) 4 John Alan Doran (AZ Bar No. 012112) ([email protected] ) 5 Craig A. Morgan (AZ Bar No. 023373) ([email protected]) 6 IN THE SUPERIOR COURT OF THE STATE OF ARIZONA 7 IN AND FOR THE COUNTY OF MARICOPA 8 MARICOPA COUNTY, et al., No. CV2020-016840 9 Plaintiffs, No. CV2021-002092 v. 10 KAREN FANN, et al., 11 VERIFIED APPLICATION FOR TEMPORARY RESTRAINING Defendants. 12 ORDER/PRELIMINARY INJUNCTION ___________________________________ 13 AND MARICOPA COUNTY, et al., 14 Plaintiffs, APPLICATION FOR AN ORDER TO SHOW CAUSE v. 15 KAREN FANN, et al., (Expedited Hearing Requested) 16 Defendants. 17 18 Law Offices ALLISTER ADEL HINSHAW & CULBERTSON LLP MARICOPA COUNTY ATTORNEY 19 2375 E. Camelback Rd. Thomas P. Liddy (019384) Suite 750 Emily Craiger (021728) 20 Phoenix, AZ 85016 Joseph I. Vigil (018677) 602-631-4400 Joseph J. Branco (031474) 21 602-631-4404 Joseph E. LaRue (031348) Stephen W. Tully (014076) Deputy County Attorneys 22 [email protected] [email protected] [email protected] 23 [email protected] [email protected] 24 [email protected] CIVIL SERVICES DIVISION 25 225 West Madison Street Phoenix, Arizona 85003 26 Telephone (602) 506-8541 Facsimile (602) 506-4317 27 [email protected] 28 Counsel for Maricopa County Plaintiffs Active/52873781.2 1 The Arizona Senate, through a few of its misguided members, wants to hold every 2 member of the Maricopa Board of Supervisors in contempt and have them arrested for 3 allegedly failing to comply with an invalid subpoena issued for an illegitimate purpose--all 4 without a modicum of due process. This Court must immediately enjoin the Senate from 5 ignoring basic tenants of due process in furtherance of a blatant attempt to create dangerous 6 and false political theatre. 7 Pursuant to Arizona Rule of Civil Procedure 65 and A.R.S. § 12-1801 et seq., plaintiffs 8 Maricopa County, Jack Sellers, Bills Gates, Clint Hickman, Steve Chucri, and Steve 9 Gallardo (collectively, the “Supervisors”), request this Court issue: 10 (1) An Order to Show Cause ordering defendants (collectively the “Senators”) to appear 11 and show cause why the Supervisors should not be granted the injunctive relief they seek 12 herein; and 13 (2) A temporary restraining order, and later preliminary and permanent injunction, for 14 the purpose of restraining and enjoining the Senators from taking any further action to hold 15 the Supervisors in contempt pursuant to A.R.S. §§ 41-1153 or -1154-incluidng voting to do 16 so, or to enforce that contempt pursuant to A.R.S. §§ 41-1153 or -1155, until this Court 17 determines whether (a) the subpoena at issue were lawfully issued and remain valid, and (b) 18 any contempt process utilized against the Supervisors will afford them basic due process, 19 which at minimum includes adequate notice of how precisely the Supervisors have acted 20 contemptuously and an adequate opportunity to address those allegations. This Application 21 is supported by the Declaration of Chairman Jack Sellers, attached as Exhibit 1. 22 Memorandum of Points and Authorities 23 In the aftermath of politically charged paranoia about so-called “election rigging” and 24 “vote stealing” the Senators have set their sights on the Supervisors in an effort to press 25 ahead with a false narrative belied by the actual facts and evidence. This time, the Senators 26 want to hold the Supervisors in contempt and threaten them with incarceration (if not 27 actually incarcerate them) for purposes of creating political theatre. 28 To that end, on January 12, 2021, the President of the Arizona Senate and the Chairman 1 of that chamber’s Judiciary Committee issued subpoenas commanding the Supervisors, 2 Maricopa County Recorder, and Maricopa County Treasurer to appear for testimony before 3 the Judiciary Committee on January 13 at 9:00 a.m.—about 17 hours later—and to bring 4 with them, among other items, roughly 2.1 million voted sealed and secret paper ballots, 5 and certified elections equipment used in the 2020 general election in Maricopa County. 6 See Exhibit A. 7 Those subpoenas did not follow a vote of the full Arizona Senate to establish an 8 investigation related to the 2020 general election in Arizona. See, e.g., Buell v. Superior 9 Court, 96 Ariz. 62, 64 (1964). Instead, the subpoenas followed a prior legal dispute about 10 similar legislative subpoenas requesting these items to desperately try and substantiate 11 months of conspiracy theories debunked by the press and rejected by the courts.1 12 In a show of good faith and public service, the Chairman of the Maricopa County Board 13 of Supervisors, the Maricopa County Recorder, and the Maricopa County Treasurer 14 appeared with counsel at the Arizona Capitol to testify before the Judiciary Committee and 15 discuss the subject of these subpoenas, despite our stated objections to the subpoenas. See 16 Exhibit B. But there was a problem: there was no hearing at the Arizona Senate on January 17 13; one was never scheduled, and one was never held. Indeed, the County representatives 18 who arrived as ordered were told to leave. In other words, the Subpoenas were a sham. 19 Despite this obvious set-up, in the days that followed--and, again, as a sign of good 20 faith--the Supervisors and the Maricopa County Recorder produced over 11 gigabytes of 21 data (an estimated over half a million pages) requested by the Senators in their subpoenas, 22 including the Voter Registration Database (subject to the redactions of certain personal 23 24 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.), 25 https://www.usatoday.com/story/news/factcheck/2021/01/21/maricopa-county-agreement- arizona-senate-joe-biden-inauguration/6661033002/ (“Trump and his supporters have 26 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 27 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- 28 allied-firm-with-history-of-false-election-statements-to-audit-maricopa-election/. 2 1 information required by law) and numerous computer log files and ballot tabulation reports 2 associated with the November 3, 2020, general election. The Supervisors also voted to 3 perform two additional audits of its elections equipment to once again confirm that the 4 baseless conspiracy theories about the 2020 general election in Maricopa County were just 5 that--baseless. These audits were in addition to the statutorily mandated hand count 6 completed on November 9, 2020 that the machines performed with 100% accuracy. 7 Rather than working with the Supervisors to resolve this dispute, the President of the 8 Arizona Senate and the Chairman of the Judiciary Committee introduced a resolution to 9 hold the Supervisors in contempt. See Exhibit C. This, despite the Supervisors’ sincere 10 and substantial efforts at compliance--even after showing up to a hearing that was never 11 scheduled and providing a multitude of documents and information as reasonably quickly 12 as possible (documents and information one can safely assume the Senators have not 13 bothered to review carefully before launching into effectuating their manufactured 14 conspiracy of contempt). 15 The Supervisors recognize the lawful authority of the Senate to issue subpoenas, and 16 understand that the Senate has the right to expect lawful subpoenas to be obeyed. But the 17 Senate is not above the law, and it cannot demand, upon pain of imprisonment or a 18 misdemeanor conviction, that its subpoenas be obeyed even when unlawful, as it does here. 19 Accordingly, for the following reasons, this Court should enter the temporary restraining 20 order and preliminary injunction the Supervisors seek. 21 I. THE FACTS 22 A. THE 2020 ELECTION STRICTLY COMPLIED WITH THE LAW 23 Maricopa County conducted a general election on November 3, 2020, which included 24 an election for presidential electors (the “Election”). All of the vote tabulators and ballot 25 printers, Maricopa County used to conduct the Election had been certified by the Arizona 26 Secretary of State and also tested and certified by a laboratory that is accredited by the 27 United States Elections Assistance Commission pursuant to the Help America Vote Act (as 28 Arizona law requires, see A.R.S. § 16-442). 3 1 Prior to the Election, on October 6, 2020, the Arizona Secretary of State conducted a 2 pre-election logic and accuracy test of the vote tabulation machines--as required by Arizona 3 law (see A.R.S. § 16-449) and in accordance with the procedures, testing requirements and 4 protocols established by the Arizona Elections Procedures Manual.2 This logic and 5 accuracy test is an audit of the vote tabulation machines’ ability to properly read and 6 accurately tabulate ballots. It consists of using the tabulation machines to tabulate pre- 7 marked ballots to ensure that the tabulation totals are correct. The vote tabulation machines 8 received a perfect score, making them 100% accurate. See Exhibit D (a true and correct 9 copy of the October 6, 2020, Logic and Accuracy Certificate of Accuracy).