Audit Fight in Maricopa County Threatens Our Constitutional Order

“The elective franchise,” Thomas Jefferson wrote in 1801, “if guarded as the ark of our safety, will peaceably dissipate all combinations to subvert a Constitution, dictated by the wisdom, and resting on the will of the people.” 

Jefferson could not have selected stronger imagery to convey his point. He invokes the image of the Ark of the Covenant—the sacred chest that housed the two tablets of law given to Moses on Mount Sinai that the Israelites carried through the wilderness, carried into battle, and placed in the Holy of Holies inside King Solomon’s temple. It was the place of presence: “There I will meet you . . . on the ark of the testimony, I will speak with you.” (Exodus 25:22). 

In our representative republic, the elective franchise is the conduit through which sovereignty, resting in the people, comes down to empower and legitimize government. So, as Jefferson suggested, we must guard the integrity of our elections like the Israelites guarded the Ark. If we do not, we risk our entire constitutional order.

That’s why the recent news out of Maricopa County, Arizona, is so disturbing. Karen Fann, president of Arizona’s state senate, has written a letter to the Maricopa County Board of Supervisors stating that the senate-ordered audit of last year’s election has identified serious irregularities as well as missing data. Fann’s letter also calls out the county for willfully refusing to comply with the Senate’s audit subpoenas.  

Grave concerns have been raised about the conduct of the election in Maricopa County, and the Arizona senate ordered the audit to shine a light on the situation and unearth the facts about what happened in November. Doing so is crucial to maintaining the public confidence in election outcomes a functioning representative republic requires.

Unfortunately, however, it appears that the county is not cooperating. Fann, a Republican, chided Maricopa County officials for refusing to comply with a legislative subpoena requiring the production of important election-related images and documents. Refusing to comply with this lawful legislative subpoena only serves to subvert the audit and, ultimately, undermines the public’s faith in the election system. 

Fann’s letter also identifies a “significant number” of instances where the reported number of ballots for a batch is different from (in most cases, greater than) the actual number of ballots in the batch. These troubling discrepancies demand an explanation, as do other inconsistencies and anomalies related to the county’s handling of ballots called out by the letter. When ballots and related records are not handled with care, it tears at the very notion of election integrity. 

Perhaps most troubling, the senate president’s letter states that an entire database of critical election information appears to have been deleted from a county election machine. According to the letter, information from the machine “suggests that the main database for all election-related data for the November 2020 General Election has been removed” from it. 

The deletion of pertinent election-related data during or in advance of a legislative audit is an outrage. It subverts the audit, obfuscates the true facts about the conduct of the election in Maricopa County, and directly undermines public confidence in our elections.

Maricopa County’s Board of Supervisors needs to explain its actions and immediately and fully comply with the state Senate’s subpoena. Any further refusals to cooperate will conclusively demonstrate that the County Board is not an honest broker but rather is opposed to the transparent, honest conduct of elections. 

It is long past time for Maricopa county to do its duty and help “guard the ark.” The legitimacy of the elective franchise and the integrity of our constitutional order itself hang in the balance. 




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About Doug Wardlow

Doug Wardlow is a constitutional lawyer and former Minnesota state representative. He is currently running for Minnesota attorney general.

Photo: Courtney Pedroza/Getty Images