Judges question Arizona counties' authority to do full hand counts of ballots

Allowing Arizona counties to do hand-counts of most or all early ballots cast would be a “recipe for chaos’’ in elections, an attorney told an Arizona Court of Appeals panel Tuesday.

The three judges hearing the case appeared to mainly agree, despite a draft ruling written by one of the judges that sided with Cochise County. The case is an appeal by Cochise County’s officials, whose plan to do a full hand count of ballots in last year’s general election was blocked by a trial court judge.

Attorney Aria Branch told the panel that Arizona’s election laws laying out how small hand-count audits are done to check the accuracy of machine ballot tabulators would be rendered useless if counties could just count all the ballots by hand. Branch represents the Arizona Association of Retired Americans, which sued to block the Cochise County hand count.

“A full hand-count is only permitted if there are problems with the electronic tabulation,’’ Branch said. “It’s not to proceed as a matter of course.’’

But the attorneys for Cochise County, Veronica Lucero and Bryan Blehm, disagreed. They argued the state’s election laws set a minimum number of early ballots to be audited and allow counties to do more, or even hand count all of them, to ensure the Board of Supervisors is certain enough of the results to certify the election.

Blehm told the judges that state law only sets a minimum number of early ballots to be audited.

But Judge Peter J. Eckerstrom cut him off.

“Let me stop you there,’’ Eckerstrom told Blehm. The “plain language’’ of the law covering audits of early ballots, he said, “established that the maximum number of early ballots which can be initially audited is 5,000.’’

Blehm countered that county boards are not merely there to sign off on the election results handed to them by their election staffs.

“They have to swear under oath that that is true and correct,’’ he said. “And to do that, one has to educate oneself whether or not that is true and correct.’’

The decision that the Court of Appeals will eventually issue has major ramifications for Arizona’s elections.

Republicans, egged on by former President Donald Trump’s unfounded allegations that vote-counting machines are not accurate, have been pushing for hand counts in multiple Arizona counties, although none have so far followed though.

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If the appeals court sides with Cochise County’s GOP-led board and County Recorder David Stevens, hundreds of volunteers will have to be enlisted to hand count tens of thousands of ballots in the 2024 election.

That could delay certification, and as Branch told the appeals court judges, could lead to two separate sets of results, since she said it is a well-known fact that machine counts are more accurate than having people count multiple races on each ballot.

Other GOP-led counties are almost certain to follow Cochise County’s lead. Mohave County supervisors are considering scrapping tabulation machines altogether for next year’s election, although they face pushback from Secretary of State Adrian Fontes.

The state Election Procedures Manual, the road map for county election officials that provides detailed guidance on running elections based on state law, specifically says counties can expand the hand-count audit of early ballots. More than 80% of the ballots cast in Arizona are cast early, and the remaining votes cast in-person on Election Day are subject to different auditing rules.

The appeals court may get around that, Branch said, by noting that an informal opinion issued by former Attorney General Mark Brnovich last year, that counties can hand-count all ballots, has been withdrawn by new Attorney General Kris Mayes and replaced.

Also, Gov. Katie Hobbs, who signed off on the 2019 manual when she was secretary of state, has told the court that section about hand counts runs counter to the law and should be ignored.

State law, which trumps the Election Procedures Manual, doesn’t allow a full hand count, Branch said.

Fontes, who like Mayes and Hobbs is a Democrat, is currently working on a new version of the manual. Fontes spokesman Paul Smith Leonard declined to say Tuesday whether that provision would be dropped, but Branch told the justices it would be.

“We have every reason to believe that in the (Election Procedures Manual) that comes out at the end of the year, that line about counties having additional discretion will be removed,’’ Branch said. “Because every state official who is involved in the EPM process — the attorney general, the governor, the secretary of state — all agree that that line should be rendered inoperable because it conflicts with state law.’’