It remains to be seen if Cochise County officials can attract enough qualified electors to conduct a 100 percent hand count of all ballots cast in the 2022 General Election prior to its election canvassing deadline.
But one thing that is certain, is the Arizona Attorney General’s Office (AGO) has found nothing in state law to prevent the full hand count effort, according to an informal opinion Deputy Solicitor General Michael Catlett issued to State Sen. David Gowan (R-Sierra Vista) on Friday.
“Cochise County has discretion to perform an expanded hand count audit of all ballots cast in person at 100% of the precincts or voting centers located in Cochise County, along with 100% of early ballots cast in Cochise County, so long as the expanded hand count audit of statewide and federal races is limited to five contested statewide and federal races appearing on the 2022 General Election ballot,” Catlett wrote.
Opponents, such as Secretary of State Katie Hobbs, of Cochise County’s plans to conduct an expanded hand count not specifically spelled out in state statute have stated unequivocally that such an activity is unlawful. Even County Attorney Brian McIntyre repeatedly told the three county supervisors they were “breaking the law” and that his office would not represent them in any litigation stemming from the hand count.
However, Arizona Revised Statutes and the Hobbs-created Elections Procedures Manual (EPM) set out circumstances by which a full hand count of ballots cast at polling places is not only allowed, but actually required.
In addition to Catlett’s recent letter, AGO Chief Deputy Joseph Kanefield recommended in November 2020 that Maricopa County election officials increase their planned hand count from 2 percent to 5 percent of polling locations.
And in 2015, then-Solicitor General and current Arizona Supreme Court justice John R. Lopez provided a formal opinion to Pima County that state law “does not affirmatively bar hand counts outside the scope of the statute.
Two mandatory post-election hand counts are addressed in Arizona Revised Statutes and further defined in the EPM for the purpose of comparing the count to the results from the electronic, machine tabulation system. One is a hand count of a set percent or number of ballots cast at precincts or voting center, whichever the county utilizes.
The other is a hand count of 1 percent of the early ballots mailed out (or 5,000 whichever is less) while ensuring early ballots counted by each tabulation machine are included in the hand count.
“The purpose of the hand count audit is to compare the results of the machine count to the hand count to assure that the machines are working properly and accurately counting votes,” the EPM states. “Those conducting the hand count shall not be provided the machine count results of the batches of ballots they are hand counting prior to completion of the hand count of that batch.”
The two-part audit, however, does not involve every race or contest on the ballot.
Only four contested races are selected at random by the county political chairs in non-presidential election years. There must be one statewide candidate race (i.e., governor, secretary of state, treasurer, attorney general); one statewide ballot measure; one legislative candidate race (Arizona House or Arizona Senate); and one federal candidate race (U.S. House of Representatives or U.S. Senate).
The Cochise County Board of Supervisors have announced Election Director Lisa Marra will conduct the two usual hand counts immediately after Election Day. Then County Recorder David Stevens will oversee a separate round of hand counts of all ballots cast in the county.
According to Chapter 11 of the EPM, if the results in either hand count are within the “designated margin” of the electronic results, then that hand count is deemed to have confirmed the accuracy of the electronic tabulation equipment and the hand count is concluded. For 2022 elections, that designated margin is three votes or one percent, whichever is greater.
But if the result for any race in either of the hand counts audits is outside the designated margin compared to the machine tabulation count, then state law requires the hand count board members to conduct a second or “do-over” hand count of the same ballots and races.
If a do-over count involving a polling place hand count is still outside the designated margin, then an “expanded” hand count for that race must be conducted with double the number of precincts or voting centers. And if that expanded count for a race still comes in outside the designated margin, there is even a contingency for under ARS 16-602(D) for hand counting all precinct / voting center ballots cast in the county for that race.
With early ballots, if a second or do-over hand count designated margin is still an issue for any race, then another 1 percent of the ballots or 5,000 ballots (whichever is less) is added for a new expanded hand count of the impacted race(s).
There is no provision in state law or the EPM for hand counting 100 percent of the early ballots if this expanded count still results in a difference for any race outside the designated margin. Instead, “the manual counts shall be repeated for that race until a manual count results in a margin that is less than the designated margin,” according to the EPM.
Election experts report that no Arizona county has ever had to go past the do-over step in a hand count.
For their part, Cochise County’s two Republican supervisors -Tom Crosby and Peggy Judd- found nothing in statute prohibiting a voluntary full hand count of all ballots. Questions have been raised about the legal advice they receive from their county attorney’s office and McIntyre’s insistence he would not represent the board if they authorized a more encompassing hand count.
While McIntyre would not have had access to Catlett’s informal opinion at the time, there were the two prior AGO opinions on the subject which appear to allow for some type of optional expansion.
Meanwhile, the two recognized county political party chairs only a few more days to designate their hand county board members and alternates to Marra and Stevens. One question is whether enough board members will be provided by the parties to conduct both of sets of hand counts.
However, party chairs are free to designate board members from outside their party, although no more than 75 percent of all hand count board members can be of any one party. In addition, any qualified elector from this state may ask to be designated by one of the Cochise County party chairs.
Another question is whether Marra will turn over the ballots to Stevens after she has conducted the tabulation of ballots and the statutory hand counts.
At issue is ARS 16-602(H) which reads in part that notwithstanding any other law, “the county officer in charge of elections shall retain custody of the ballots for purposes of performing any required hand counts and the officer shall provide for security for those ballots.”
The ballots would then typically be turned over to the County Treasurer for securing under lock in compliance with Arizona’s records retention law.
