On Monday several legislators called on the Maricopa County Board of Supervisors to immediately undertake a hand count of nearly 168,000 ballots cast in-person at 175 voting centers on Nov. 3 in order to resolve a lawsuit about how ballots are audited after an election.
The letter written by Representative Bret Roberts (LD11) and signed by 14 of his fellow senators and representatives came the same day that the Maricopa County Attorney’s Office told a judge that a legal challenge to the county’s recent hand count of 2,917 votes needs to be resolved this week, as the supervisors intend to canvass the election no later than Friday.
It’s important to ensure the statute is followed the way it is written. The EPM was written to address where statute does not give direction. 16-602(B)(1) already existed so statute gave direction on how to perform a mandatory hand count. It existed prior to the EPM. pic.twitter.com/tmpBzSR3OC
— Bret Roberts (@BretRbrts) November 17, 2020
A hand count is an audit which compares the counts reported by electronic tabulation equipment to a manual count of a random sampling of votes. Arizona Revised Statute 16-602 requires each county’s election director to oversee a hand count of in-person Election Day ballots in two percent of a county’s precincts or two precincts, whichever is greater.
In 2011 the legislature authorized counties to use voting centers so that voters can cast a ballot anywhere in the county instead of at only one precinct polling station. The legislature did not change the two percent of precincts language, but the Arizona Elections Procedure Manual issued by the Arizona Secretary of State’s Office equates a voting center with a precinct.
Maricopa County conducted its recent hand count based on two percent of its voting centers. As a result, the Arizona Republican Party sued Maricopa County Recorder Adrian Fontes and the county’s board of supervisors for failing to conduct its recent hand count in the manner prescribed by statute.
The problem, according to county officials, is that there is no easy way to identify which of the 167,878 votes cast in-person on Election Day belong to voters for a specific precinct. And last week Chief Deputy Attorney General Joseph Kanefield advised Senate President Karen Fann and House Speaker Russell Bowers that auditing two percent of voting centers instead of precincts was acceptable.
Roberts, along with his colleagues took issue with the viewpoint of Maricopa County officials and the attorney general’s office.
“The decision of the (Maricopa County Board of Supervisors) regarding voting centers, therefore, does not relieve the elections officers of the duty and requirement to still conduct a hand count of 2% of the precincts,” the letter states. “Thus, the AG’s assumption that ‘voting centers’ can be substituted for ‘precincts’ in all other areas of the statute does not appear to be supported by state statute.”
That is why the legislators are calling on the board of supervisors to require county officials to conduct a new hand count, even if it requires auditing every in-person ballot as a way to comply with the state law.
Fortunately no more than five contested races -one being the presidential race- are audited during a hand count. But it would likely require the participation of dozens of volunteers from the three main political parties to complete the hand count in time to avoid any extensive delays in the county board’s canvassing of the votes.
The hand count controversy does not apply to the more than 1.9 million Early Ballots mailed in or dropped off for tabulation in Maricopa County as early ballots undergo a different audit process that is not based on precincts.
The same contested races are audited as with the Election Day ballots, but the number of ballots sampled is one percent of the total number of early ballots cast or 5,000 early ballots, whichever is less.
Maricopa County has filed a motion to dismiss the hand count lawsuit. On Monday Judge John Hannah granted a motion by the Arizona Secretary of State’s Office and the Arizona Democratic Party to intervene in the case. Hannah is expected to issue other orders in the case later this week, although he has not yet been asked to consider prohibiting Maricopa County from canvassing its votes.