PHOENIX — Maricopa County officials are sending a bill for $2.8 million to the state Senate to cover the cost of having to acquire new voting machines.
But don't look for Senate President Karen Fann to pull out her checkbook any time soon.
In his letter to Fann, Tom Liddy, chief of the civil division of the county. reminded her that she signed a formal "Covenant of Indemnification'' to cover any expenses that the county incurred as a result of the subpoenaed election equipment being damaged.
More to the point, Liddy said that agreement said the Senate would cover the costs of the equipment being “otherwise compromised. “And he said the pact makes the Senate liable for “without limitation expenses associated with procuring new equipment.”
What makes that necessary, Liddy said, is a conclusion by Secretary of State Katie Hobbs, who is the state's chief election officer, that the county can no longer use the equipment it had been leasing from Dominion Voting Systems once it was turned over to Cyber Ninjas, the private firm Fann hired to conduct an audit of the 2020 election.
Hobbs said security experts told her once the county lost custody and control of the voting systems, “these devices should not be reused in future elections.”
“Rather, decommissioning and replacing those devices is the safest option as no methods exist to adequately ensure those machines are safe to use in future elections,” Hobbs wrote to the supervisors. “Instead, the county should acquire new machines to ensure secure and accurate elections in Maricopa County going forward.”
And that, Liddy told Fann, is what the county intends to do — with the Senate picking up the cost.
“It would be inequitable to allow the Senate to escape the requirements of the Covenant of Indemnification -- especially when the Senate should have reasonably foreseen that placing the county's equipment in the hands of unqualified and unaccredited 'auditors' would threaten the equipment's certification for use in elections,” he wrote.
Fann isn't buying it.
“This is yet another publicity stunt by Maricopa County,” she told Capitol Media Services. And Fann said there is no money owed to anyone.
“Machines were not damaged or tampered with,'' she said. "And they know that.''
Anyway, Fann said, this is just a continuation of what she sees as the county’s reticence to actually answer questions about the accuracy of the election results, the ones that saw Joe Biden outpoll Donald Trump not only in Maricopa County but statewide.
“This shows they prefer to shower taxpayer dollars on Dominion and lawyers, rather than having an honest conversation about the audit,” she said.
Fann also rejected the county's contention that the Senate also is liable for the costs incurred in sending the equipment and the 2.1 million ballots to the Veterans Memorial Coliseum where Cyber Ninjas conducted its review. Those range from renting delivery trucks and overtime pay for staff to training a firm to clone the hard drives of the tabulation equipment before turning them over.
"We asked Maricopa County to do the audit with us and not move the ballots and equipment,” she said. But the county balked at having Cyber Ninjas employees and volunteers inside its election offices.
In a prepared statement, supervisors Chairman Jack Sellers said the bill is justified.
“Imagine leasing a car and then loaning it to someone who totals it,” Seller said. “You’re still on the hook to pay off the wrecked car. Plus, you need a new car.”
He said the county is doing the equivalent of getting a car to get it through the next year and a half.
“I'm just glad we had the Senate sign that indemnification contract,” he said.
Strictly speaking, what the county sent Fann is a “notice of claim.” State law requires anyone who says they are owed money to the state to first file a notice of how much they would be willing to settle it for.
If there is no response within 60 days, the claim is deemed denied and the person or entity person making the claim is entitled to file suit.
All this comes as the Senate continues to fight legal efforts to produce some of the documents related to the audit.
On Wednesday attorneys for the Senate asked the state Court of Appeals to delay the order of Maricopa County Superior Court Judge Michael Kemp that it immediately produce all records related to the audit. That includes not just those in possession of the Senate but also those held by Cyber Ninjas.
Kemp rejected arguments that the materials held by the private firm are not subject to the state's public records law. And he said the fact the Senate itself does not have possession of the documents that have been produced by Cyber Ninjas is irrelevant.
“Nothing in the statute absolves the Senate defendants' responsibilities to keep and maintain records for authorities supported by public monies by merely retaining a third-party contractor who in turn hires subvendors,” Kemp wrote. Allowing that to happen, the judge said, “would be an absurd result and undermine Arizona's strong public policy in favor of permitting access to records reflecting governmental activity.”
The judges did not say when they will rule.