Absent a change in legislation, Cochise County and the state’s other 14 counties cannot conduct a 100 percent hand count audit of ballots unless state law requires it. And it does not matter that former Attorney General Mark Brnovich’s office said differently last year, according to Attorney General Kris Mayes.
On May 18, Mayes ordered that an opinion issued in October 2022 by Brnovich’s office about the hand count audit of ballots be withdrawn and replaced with a new opinion she signed.
The dueling opinions stemmed from an effort by State Sen. David Gowan (R-Sierra Vista) to obtain legal direction from Brnovich prior to the 2022 General Election as to whether Cochise County’s Board of Supervisors had authority under Arizona Revised Statutes 16-602 “to audit the results of an electronically tabulated general election by hand counting all of the election ballots of their county.”
The response from Brnovich’s office came in the form of an informal opinion signed by a deputy solicitor general. It noted Cochise County “has discretion to perform an expanded hand count audit of all ballots cast” so long as any audit involving statewide and federal races was limited to the statutory maximum of five contested races.
Counties are already required to arrange for hand count audits to verify the accuracy of electronically tabulated voting results. This is done under ARS 16-602(B) by randomly selecting ballots cast at precincts / voting centers and ARS 16-602(F) related to early ballots, with the two statutes having different formula and processes.
However, the overall number of either type of ballot subject to an initial hand count audit is very low compared to the total number of ballots cast. For example, Cochise County’s hand count audit in the 2020 General Election involved less than 15 percent of the ballots cast on Election Day were pulled from just 2 of the county’s 17 voting centers.
The county also performed a hand count audit of only 449 of the more than 48,000 early ballots cast in Cochise County in that same election.
This led two of Cochise County’s three supervisors to push prior to the 2022 General Election for an “expanded” hand count audit that eventually morphed into an attempt at a 100 percent audit of voting center ballots.
There was also an effort to expand the early ballot audit, based in part on a provision of the 2019 Arizona Election Procedures Manual approved by Hobbs, Brnovich, and then-Gov. Doug Ducey which states that with respect to ARS 16-602(F), counties “may elect to audit a higher number of ballots at their discretion.”
But the Arizona Supreme Court has previously ruled that an EPM provision which contradicts a statute “does not have the force of the law.” And Mayes’ opinion matches that of a state judge who ruled on Nov. 7 that Cochise County supervisors or their designate were barred from engaging in any hand count audit that deviated from the processes outlined in Arizona Revised Statute 16-602.
According to Mayes, further review of state law and the court’s decision in the Cochise County case led her to conclude “the informal opinion misinterpreted the governing statutes.” She also took issue with how Brnovich’s office handled the review of Gowan’s question, noting the informal opinion was not signed by the solicitor general or attorney general.
As such, the October 2022 response to Gowan should not have been issued in a manner similar to a formal opinion, Mayes said.