The Cochise County Board of Supervisors’ quest to conduct a 100% hand count audit of the 2022 General Election continued Tuesday, as the board filed an appeal to the initial ruling made by Pima County Superior Court Judge Casey McGinley that struck down the board’s hand count pursuit as violating Arizona election law.
Veronica Lucero, the attorney for Cochise County Recorder David Stevens, argued that state statute permits the board to conduct a 100% hand count audit of early and election day ballots since the language of the law requires a randomized hand count audit of “At least two percent of the precincts in that county, or two precincts, whichever is greater.”
Lucero also argued that a different section of Arizona law, which states that all ballots cast in local and state elections “may be” cast and counted by ballot tabulation machines, leaves the door open for the county to not use ballot tabulation machines.
She cited McDonald v. Cochise County, a 1930 case that affirmed Cochise County voters' decision to move the county seat from Tombstone to Bisbee.
"The board does have the power to enact procedures as the legislative authority of the county if it chooses to do so," said Lucero. "I believe that A.R.S. 16-443, it says that votes 'may be' cast on tabulators. So, it doesn't say that they 'shall be.' So, I think the county retains the authority to do the initial tally by hand if they wanted to."
Bryan Blehm, the attorney for the Cochise County Board of Supervisors, added that "If they decide not to use electronic voting devices and to count their ballots by hand, 16-602 does not matter. It goes away. That renders the entire statue as superfluous.”
Appeals Judge Sean Brearcliffe stated that the entire statute isn’t superfluous. It is only superfluous to the counties for which it does not apply. He added the statute still applies.
Aria Branch, the attorney for Arizona Alliance For Retired Americans and Stephani Stephenson, said that Arizona law does not permit a full hand-count audit unless there are discrepancies that trigger subsequent expanded audits, of which, she said the county has never met those conditions to trigger that process. She argued that Arizona law, specifically 16-621 and 16-622, do require the use of ballot tabulation machines to certify election results.
“The count to be certified is the machine count," Branch said. "And if you look at the electronic procedure manual, it also states that the machine count is to be certified unless it is impractical to use the machines … Allowing counties to choose whether or not they want to do, you know, a 50% hand count or a 100% hand count — and then, others choose not to do so — would be a recipe for chaos ...
There is absolutely no exception anywhere in 16-602 or otherwise that would allow a county to do a 100% hand count audit in the first place," Branch continued. "There’s certainly no exception in the first place if they do, right, make this election to do a 100% hand count audit, they don’t have to follow the rest of the procedures in the statute. Certainly if the legislature intended to provide such an exception, we would see that on the face of the statute."
Branch also said that the section of the 2019 Elections Procedure Manual (EPM) that relates to the requirement of hand count auditing early ballots, has a section that violates Arizona law. The initial requirement in the EPM states that the officer in charge of elections is required to conduct "1% of the total number of early ballots cast, or 5,000 early ballots, whichever is less."
But it's the line directly after that requirement that Branch claims conflicts with Arizona law. That section of the EPM states “Counties may elect to audit a higher number of ballots at their discretion.”
"That specific line in the EPM is contrary to statute, it shouldn't have been included in the EPM," said Branch. "And Arizona law is very clear on what happens in that circumstance. The EPM and Arizona law — Arizona State Statutes — are not the same. The statutes are superior, and when a provision of the EPM conflicts with Arizona law, it is rendered as inoperable and does not have the force of law."
She said that has been the focal point of previous lawsuits and that the governor, attorney general and secretary of state have agreed that the sentence should be removed from the purposed 2021 EPM. Currently, the 2021 EPM submission on the Secretary of State's webpage still includes that line.
The appeals court did not release a timetable for its decision.
Background on Hand-Count Audits in Arizona
According to Arizona Law, for every primary, general or special election, the county officer in charge of elections conducts a randomized hand count audit of either two percent of the ballots in that county or two precincts — whichever is greater.
Within the 2019 version of Arizona’s EPM, the precinct’s hand count margin is compared to the designated margin established by the Vote Count Verification Committee: the Vote Count Verification Committee is a seven-member committee that is an offshoot of the Arizona Secretary of State’s office and meets before every Primary and General Election to determine the designated margins, according to the Arizona Secretary of State’s website.
The current designated margins are “For early ballots is set to three votes or one percent, whichever is greater,” and for polling place ballots “Is set to three votes or one percent, whichever is greater.”
Hand count audits of election results are only permitted under Arizona law when specific conditions have been met. If the standard 2% or two precinct hand-count audit produces a hand count margin that is less than the designated margin when compared to the electronic tabulation of those same ballots, then the hand count audit is completed and ceases and the electronic tabulation stands as the official results.
However, if that hand count margin is equal to or is greater than the designated margin when compared to the electronic tabulation, a second hand count of that same number of ballots and races is done. Similar to the fist procedure, if the hand count margin is less than the designated margin, then the hand count audit stops and the electronic tabulation is recognized as the official result. If it’s equal to or greater than the designated margin, then the hand count is expanded to double the “original number of randomly selected precincts” according to A.R.S. 16-602 section C.