PHOENIX — At least one appellate court judge appears ready to let Cochise County do a full hand count of its early ballots.
But not of those who voted at polling places.
And if that draft opinion holds after the three-judge panel of the Court of Appeals hears arguments on Tuesday in Tucson, that would be a partial victory for Republicans who have argued, without evidence, that vote-counting machines are untrustworthy and only hand counts can produce accurate results.
It also would open the door for election officials in the state’s other 14 counties to conduct expanded hand counts of all early ballots.
They are the vast majority of all ballots cast in the 2024 election, making up more than 80% of the 2.56 million votes for governor. And that could slow up final results.
The draft ruling is the latest in a legal fight that had the Arizona Alliance for Retired Americans, a labor group, sue Cochise County after it announced plans before the November election to hand count all ballots in addition to the machine count.
A trial judge blocked the move. But the county appealed — even after the election was over — seeking permission for such hand counts going forward.
At the heart of the legal fight are two sections of state law that govern audits of election results.
One deals specifically with those cast on Election Day. That involves comparing the results reported by tabulators from at least 2 percent of the precincts for selected races with the results of a hand count.
If that is within a designated margin of error, that ends the matter. If not, a larger sample is selected for review.
A discrepancy in that results in an even larger sample. And only if that is outside the designated margin can the county do a full hand count of all Election Day ballots — but only for the race at issue.
Attorneys for the Republican supervisors and County Recorder David Stevens sought before the November election to do a full hand count, arguing that 2 percent is a floor, permitting them to decide to do more.
“We disagree,’’ the draft opinion states.
“When (the law) is reviewed as a whole, a complete hand count audit is permitted only after a multi-step process that includes conducting the less-expansive audits,’’ it states. “Interpreting (the law) to allow a county to begin with a full hand count audit would render the statute’s multi-step process superfluous.’’
That determination, if adopted by the three-judge panel after Tuesday’s hearing, conforms with a ruling right before the November election by Pima County Superior Court Judge Casey McGinley.
But the draft opinion also concludes that McGinley was wrong in interpreting a separate section of law dealing with early ballots and barring the county from doing a full hand-count of approximately 30,000 early ballots.
That law says the county is required to conduct a hand count of 1% of the total number of early ballots cast, or 5,000 early ballots, whichever is less. But it also says that counties “may elect to audit a higher number of ballots at their discretion.’’
And there is similar language in the Elections Procedures Manual which is prepared by the secretary of state and has the force of law.
“We interpret the language of (the law) to represent minimum and not maximum requirements for a hand count audit of early ballots,’’ the draft opinion states. “As a result, the county possesses the discretion to conduct a hand count audit of all early ballots in the first instance.’’
The push for hand counts is the result of wild and unsubstantiated allegations, largely by Republicans, that voting equipment used in 2020, the one lost by Donald Trump, was vulnerable to hacking. There even were claims of a link between Dominion Voting Systems and the family of now-deceased Venezuelan dictator Hugo Chavez.
More recently, Republicans Kari Lake and Mark Finchem filed suit before they lost their 2022 races for governor and secretary of state, respectively, seeking to prohibit machine counts as being inherently unreliable. That bid was tossed out by a federal judge and the case is now on appeal.
That same pattern emerged in Cochise County.
It was Tom Crosby and Peggy Judd, the two Republicans on the Cochise board, who wanted expanded hand counts.
Crosby argued that a full hand count would “enhance voter confidence,’’ saying it could be completed prior to the deadline to certify the election results.
They were backed by Stevens, who also is a Republican.
The move was fought by Ann English, the lone Democratic supervisor.
But it wasn’t a strictly partisan fight.
The 2-1 vote to pursue a full hand count came even after County Attorney Brian McIntyre, a Republican, advised otherwise.
“I implore you not to attempt to order this separate hand county,” he told the board, warning that the action would be illegal and potentially subject the supervisors to personal liability.
It also was opposed by Lisa Marra, the county’s elections director who testified at the initial trial about how it could delay results and imperil ballot security.
Marra eventually quit, saying she effectively was pressured by the GOP supervisors to participate in the hand count of the 2022 election. She eventually got a $130,000 settlement after complaining of a toxic work environment.
The draft opinion also brushes aside claims that the appellate court should not even review McGinley’s pre-election ruling as the race is now over. Instead, it concludes that a ruling is appropriate given that the situation is likely to recur.
