Despite a greenlight at the time from then-Arizona Attorney General Mark Brnovich, two of Cochise County’s Board of Supervisors were barred last year by a Pima County judge from authorizing a 100 percent hand count audit to confirm the machine tabulation of the county’s 2022 General Election ballots.
Now, the Arizona Court of Appeals has been asked to overturn that “absurd” ruling and clear the way for such an audit when Cochise County holds its next election in May.
On Tuesday, the opening appellate brief was filed in connection with the desire of Supervisor Tom Crosby and Supervisor Peggy Judd for a full hand count audit to begin the day after the Nov. 8, 2022 election.
Their plan was shelved after Judge Casey McGinley of the Pima County Superior Court ruled the day before Election Day that the supervisors did not have authority under Arizona law to authorize an expanded hand count beyond the minimums stated in statutes.
The recently filed appellate brief argues that the two parties which sued to stop the full hand count –the Arizona Alliance For Retired Americans (AARA) and a Cochise County resident– were unable to demonstrate any harm from the extra hand count activity.
“In actual fact, no voter would have or could have been harmed by what the Board voted to do in 2022 because no possible harm can result from having one’s ballot counted twice to confirm the accuracy of the count,” the appellate brief argues.
The case tracks back to October 2022 when Crosby and Judd voted to adopt a resolution directing the officer in charge of the county’s elections to perform a hand count audit of all County precincts for the 2022 General Election.
A third supervisor, Ann English, had also opposed the expanded hand count, citing legal advice to the board from Cochise County Attorney Brian McIntyre.
Crosby and Judd stated that conducting a hand count audit to compare to the county’s machine tabulation counts would “enhance voter confidence” for residents. They also acknowledged Cochise County did not experience any problems during the 2022 election cycle.
The resolution was supported in part by an informal legal opinion issued by the Arizona Attorney General’s Office that the supervisors had discretion under state law and the 2019 Arizona Elections Manual (EPM) to order a full hand count audit.
At the time, two people had various responsibilities for the county’s elections – the elected County Recorder David Stevens and then-Elections Director Lisa Marra, who was a county employee.
Stevens agreed to handle the expanded hand after then-Elections Director Lisa Marra refused to participate. Marra cited legal advice that conducting an audit of more ballots than the minimum described in statute was illegal.
In response to the AARA lawsuit, McGinley ordered that no expanded hand count could be conducted, whether of ballots cast in-person or via early ballots. Crosby and Judd are appealing in order to clarify the authority of all 15 county boards across Arizona to direct a hand count audit beyond the minimums outlined in state law.
In addition, Cochise County has a county-wide election slated for May 16 on whether to fund a new jail through an increased sales tax. Being able to provide voters with confidence in that election is something Crosby and Judd have said is important.
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According to the appeal brief, two statutes govern post-election hand count audits in Arizona for counties which utilizes electronic tabulators.
One is ARS 16-602(B) which deals with Election Day voting, which states “at least” two percent of the precincts in a county (or two precincts, whichever is greater) shall be selected at random from a pool consisting of every precinct in the county for a hand count audit.
In counties like Cochise which utilize voting centers, the reference to precincts is deemed to mean voting centers.
But McGinley ruled in part that a full hand count of all Election Day ballots would not comply with state law because the voting centers to be audited would not be selected “at random.”
The appellate brief argues McGinley’s reasoning would apparently allow Cochise County to audit a randomly selected 99 percent of ballots cast on Election Day at its 17 voting centers, but not 100 percent.
“This is absurd,” the brief states, arguing that the need to select precincts at random is only necessary when auditing only some of the ballots.
Such a rule is then necessary, they agree, to ensure elections officials do not “put their thumbs on the scale by hand counting ballots that are likely to favor their side is obvious.” But elections officials lose any ability to influence which ballots are audited if 100 percent are chosen, the brief states.
“If you’re selecting them all, there is no bias involved,” Stevens testified to McGinley back in November. The appellate brief notes even Marra agreed with Stevens’ assessment.
A second statute, ARS 16-602(F) governs hand count audits of early ballots. The statute reads that a number of ballots equal to one percent of the total number of early ballots cast or five thousand early ballots, whichever is less, shall be recounted by hand.
There is no mention of the phrase “at least” in ARS 16-602(F) as there is in 16-602(B).
However, the appellate brief points out that Arizona’s 2019 EPM created by then-Secretary of State Katie Hobbs and approved by Brnovich and then-Gov. Doug Ducey contains a provision related to early ballots which states counties “may elect to audit a higher number of ballots at their discretion.”
Arizona courts have held that EPM provisions related to “collecting, counting, tabulating and storing ballots” have the force of law unless specifically in conflict with statute.
McGinley’s ruling held that the EPM could not be harmonized with state law, an argument rejected in the appeal. But Crosby, Judd, and Stevens contend the board of supervisors clearly had “lawful authority” to conduct a 100 percent hand count of early ballots pursuant to Title 16 and the EPM.
Alternatively, the EPM has the force of law and must be harmonized with ARS 16-602(F) because it can be harmonized without an illogical outcome.
But if the Court of Appeals find the EPM comment is not enforceable, then Stevens and the two supervisors ask that McGinley’s ruling be overturned as it applied to the hand count of Election Day ballots based on the “at least” language of the statute.
The supervisors are represented on appeal by Scottsdale attorney Bryan Blehm while Stevens is represented by Alex Kolodin and Veronica Lucero of Davillier Law Group in Phoenix.
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