Conservatives who are clamoring for election transparency and progressives who complain about election deniers are stunned by the opposition to two bills that should please members on both sides of the political aisle.
Senate Bill 1324 and House Bill 2560, sponsored by Sen. Ken Bennett and Speaker of the House Ben Toma, would increase transparency and thereby eliminate the baseless theories surrounding elections that have proliferated since the General Election of 2020.
Both bills have bipartisan support including endorsement from Arizona Secretary of State Adrian Fontes, a Democrat, and Maricopa County Recorder Stephen Richer, a Republican.
That support has not prevented attacks on the legislation by the very groups that have traditionally championed voter enfranchisement such as Common Cause and others.
The latest attack took the shape of an opinion piece penned by Alex Gulotta, Arizona State Director of the nonprofit advocacy organization All Voting is Local, and Jenny Guzman, Program Director of Common Cause Arizona.
Although Gulotta and Guzman’s expressed adamant opposition, they had not seen the latest version of the bill when their editorial was published, according to John Brakey, Director of the nonprofit election transparency organization, AUDIT Elections USA, based in Tucson. Brakey is part of a team of election experts who drafted the bill. He said the drafters have really listened to comments about the bill and have worked hard to modify parts of it to satisfy critics. He is hopeful that the bill will now be acceptable to everyone.
“Progressive organizations are generally in favor of Open Government,” Brakey said. “This bill allows the public to verify election results for themselves and should prevent the type of false claims that have plagued Arizona elections since 2020. Transparency equals truth, and transparency equals our best defense against election denialism.”
There are four fundamental premises that the bill is based on. The first is that it is important for people to be able to verify who is eligible to vote in an election, so the bill states that a list will be provided 10 days before every election of everyone who is eligible to vote, including all active and inactive voters. An inactive voter can become active again just by showing up at the correct polling place with proper identification. False claims cannot be made if all eligible voters are listed before the election.
The second premise is that anyone should be able to compare the list of eligible voters with the list of everyone who actually voted, so a second list will be made available within 48 hours of certification of the election. This post-election list, showing who actually voted, can be compared with the pre-election list of eligible voters.
Gulotta and Guzman’s editorial expressed strong concern for posting voters’ names and addresses on-line, citing harassment of voters after the 2020 election. Modifications to the bill address that concern. Voter information will now only be available upon request. A very detailed voter list is already available by request according to Arizona ARS 16-168. The voter list made available in this bill would provide much less information than is already available by law – just enough information to be able to compare the pre-election and post-election lists. Protected voters, such as judges and police officers, will not have their names published. Nor would names be published for anyone in the address confidentiality program, such as individuals who are being stalked or fear abuse.
The final two steps outlined in SB1324 are the public release of ballot images and the public release of the Cast Vote Record. These records have been the source of much controversy and much misunderstanding. A ballot becomes anonymous as soon as it leaves the voter’s hands or envelope – there is no way to trace it back to the voter by looking at the ballot. A ballot image, which is a picture of a ballot, is also anonymous. All voting systems in use in Arizona count the votes using digital scanners, which take a picture of each ballot as it is being scanned and count the votes from the picture, not from the paper ballot itself.
Gulotta and Guzman expressed concern that a voter who writes their name on their ballot would lose their private vote, or be able to sell their vote by showing how they had voted. But ballot selfies are legal in Arizona, so someone who wants to sell their vote can already show someone else how they voted. And anyone with a vote-by-mail ballot also has the opportunity to sell their vote, although there is little evidence that this occurs. As far as the loss of privacy, someone who writes their name on their ballot cannot have an expectation of privacy. Furthermore, there is no way to know if a voter wrote their own name on their ballot or someone else’s name. A signature scrawled on a ballot, an extremely rare occurrence, is not an official signature and should not prevent the public counting of votes.
Gulotta and Guzman, in their editorial, appear to believe that Arizona would be an “outlier” in making ballot images public, but unredacted images are available by request in Georgia, Florida, Wisconsin and other states, with no reports of problems. Ballot images are currently posted on-line in several places in the U.S., including San Francisco and Dane County, Wisconsin.
The latest version of SB1324 no longer calls for ballot images to be posted on-line, but, similar to the voter list, the images would be available upon request. This will allow a losing candidate to see for themselves that they really lost. It will also allow the public to verify the election themselves. Someone can add up ballot images in a variety of ways – to check their own precinct or to check the vote totals in any race on the ballot.
The Cast Vote Record, which will also be available by request upon passage of this bill, is the text version of the ballot images. Each ballot has an image, and each ballot image has a corresponding row in a Cast Vote Record spreadsheet. The Cast Vote Record shows how the voting system interpreted the voter’s selection on the ballot. Now the public will be able to see the ballot images and also see how the voting system interpreted the marks on each ballot.
In their editorial, Gulotta and Guzman state that publishing the Cast Vote Record which includes precinct votes by every race could be used to target specific areas based on how residents voted. This appears to be a misunderstanding about the records that are currently available because precinct votes by every race are included in the Canvass Report, which is already a public record and published online.
Gulotta and Guzman also express a belief that making these records public will facilitate chaos. The drafters of SB1324 believe just the opposite is true. When vital election records are kept secret, they say, it allows false claims to be made without anyone having the necessary information to refute those claims. When everyone has the correct information, it makes false claims difficult to make because they can easily be disproven.
The latest version of SB1324 has added some stiff penalties to provide the stronger guardrails that some critics are seeking. Anyone who reveals how someone else voted will be guilty of a felony. It will also be a felony to misrepresent the contents of any election record for the purpose of reporting inaccurate election data or inaccurate election results. In addition to tighter restrictions on the release of the voter list, anyone who reprints the list or any portion of it, or transmits it over the internet, will be guilty of Class 6 felony as already stated in Arizona law 16-168(F).
The revised bills now link to penalties in other Arizona laws, including penalties for voter intimidation as stated in Arizona law 16-1013 and penalties for employers who attempts to coerce the votes or political opinions of their employees, as stated in Arizona law 16-1012.
One of the concerns expressed by Gulotta and Guzman is a simple misunderstanding. They were concerned that these records would be released before certification of the election and therefore might delay or prevent certification. But both the original bill and the revised bill call for the post-election voter list, ballot images, and Cast Vote Record to be made available within 48 hours after certification of the election. The original bill referred to these records being available within 48 hours of “delivery of the official county canvass,” which means the same as the certification of the election but which was not clear to those unfamiliar with that term. The revised bill now refers to certification instead of “official county canvass.”