Plans for a hand count audit of all in-person and early ballots cast in Cochise County have become the subject of a lawsuit which seeks to limit the scope of the hand count involving early ballots and to limit who can oversee the activity.
Arizona Alliance for Retired Americans, which is an affiliate of the Arizona AFL-CIO, filed a special action complaint Monday in the Cochise County Superior Court. The Alliance is joined as plaintiff by Stephani Stephenson, a registered voter in the county.
Named as defendants in the lawsuit are the three members of the county’s Board of Supervisors along with County Recorder David Stevens and County Elections Director Lisa Marra. All are named in their official capacity only.
Arizona Alliance for Retired Americans, Inc. is a nonprofit 501(c)(4) corporation with about 50,000 retirees from public and private sector unions, community organizations, and individual activists in every county in Arizona. The lawsuit states more than 1,200 of the Alliance’s members are in Cochise County.
“As Arizona citizens and voters, the Alliance’s members have a significant interest in ensuring Defendants perform their mandatory election audit duties in full compliance with the state’s election laws,” the lawsuit states.
The legal issue dates back to Oct. 24 when the Board of Supervisors met to consider expanding the two post-election hand counts defined in state law and the Arizona Elections Procedures Manual (EPM).
Supervisors Tom Crosby and Peggy Judd, both Republicans, voted that “the County Recorder or other officer in charge of elections shall take such action necessary to perform a hand count audit of all County precincts…to assure agreement with the voting machine totals.”
The “all precincts” hand count was discussed prior to the vote as referring to in-person ballots. Crosby and Judd have repeatedly stated any expanded hand count audit is not intended to replace the machine tabulation results.
But on Oct. 28, relying in part on an informal opinion provided earlier that day by the Arizona Attorney General’s Office to State Sen. David Gowan, Crosby and Judd reiterated their intent in expanding the hand count is to include all Election Day ballots as well as all early ballots.
Noting that state law prescribes a minimum of early ballots for a hand count, the law “does not set a maximum limit on the number of early ballots that can be included in the hand count audit,” Deputy Solicitor General Michael Catlett wrote to Gowan, (R-Sierra Vista). “Thus, the Board at its discretion may include up to 100% of early ballots in an expanded hand count audit.”
The Alliance and Stephenson take an opposing legal position, arguing Arizona state law “permits no such audit” of all early ballots. The lawsuit does not, however, challenge a 100 percent hand count audit of votes cast in-person at Cochise County’s 17 voting centers.
The plaintiffs are represented by Phoenix-based Herrera Arellano LLP and Washington, D.C.-based Elias Law Group. It is unclear who will represent the Cochise County supervisors, as County Attorney Brian McIntyre stated numerous times last week his office will not defend the board’s vote. But McIntyre never commented on whether he would provide representation for Stevens and/or Marra.
Judge Laura Cardinal of the Cochise County Superior Court was assigned the case Monday as the county’s election judge. However, the court’s presiding judge immediately issued an order for an out-of-county judge to handle the case, as is common when litigation involves the county supervisors.
A new judge is expected to be assigned to the case on Tuesday morning. Election matters are typically heard on an expedited basis, with deadlines set in days instead of weeks or months.
100 Percent Hand Count Plan Exposes Misinformation And Confusion
Ann English, the board’s chairwoman and third member, has strenuously objected to any expanded hand count activity beyond what is traditionally performed. She
has gone so far as to encourage Democrats to boycott any hand count her fellow supervisors assign to Stevens, the county recorder.
The Alliance and Stephenson also contend Stevens does not have standing to conduct a hand count as he is not the head of elections.
“Arizona law is clear that only the county officer in charge of elections, who is Defendant Elections Director Marra in Cochise County, may supervise the hand count audit of early ballots,” the lawsuit states.
The lawsuit also argues Arizona law prescribes a strict chain of custody to ensure the security of voted early ballots which arrive at the County Recorder’s Office for verification of the voter’s signature on the affidavit envelope. Ballots which pass verification are sent to Marra’s Elections Department for tabulation.
In the past, Marra retains custody of all ballots for purposes of tabulation and performing any required hand counts. She then transfers the ballots to the County Treasurer for retention under lock once the ballots are tabulated and audited.
Whether Marra could be ordered by the supervisors -her bosses- to give custody of the ballots to Stevens is something that has not come up in Arizona case law.
The plaintiffs are seeking several court orders, including an injunction requiring Cochise County officials to forego the additional early ballot hand count activity.