Judge dismisses lawsuit over 'threat' of prosecution in ballot flap

PHOENIX — A judge has tossed a bid by Mohave County Supervisor Ron Gould to get an order barring Attorney General Kris Mayes from threatening him with prosecution for pushing for a hand count of elections.

Maricopa County Superior Court Judge Bradley Astrowsky said Gould’s attempt falls short, at least in part because he is not in any imminent threat of prosecution.

At the most, the judge said, Mayes told all the county supervisors that a decision to scrap machine counting “may result’’ in criminal penalties. She says the law requires machine tabulation and does not allow for a full hand count.

Even if it were a threat, Astrowsky said, there’s nothing he can do about it.

“It is a violation of the separation of powers for the judicial branch to tell the executive branch what it can and cannot do concerning an act that has yet to occur,’’ the judge wrote. “The executive branch enjoys discretion when it carries out its function. The judicial branch cannot eliminate that discretion.’’

Gould complained afterwards, “It seems like I have to get arrested to have them do anything.” He said the ruling still leaves open the possibility Mayes could charge him with a crime.

The fight in Mohave County dates back to last summer when the board voted to consider a hand count for the 2024 races. That was scrapped by a 3-2 vote against the plan in August amid various practical concerns, with Gould voting to proceed with the hand count.

But three months later board Chair Travis Lingenfelter, who had been one of the foes, put the issue back on the agenda. That gave Senate Majority Leader Sonny Borrelli, R-Lake Havasu City, a chance to argue to the board a hand count would be legal.

It was also at that meeting, however, that a letter from Mayes was read to the board. She warned the supervisors that going down that path “could result in various felonies and misdemeanor penalties.

“We hope you will choose not to violate the law and thus that it will not be necessary to consider whether criminal prosecution is warranted for conducting an illegal hand count,’’ the attorney general wrote.

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Gould contends that, had it not been for Mayes’ letter, Lingenfelter would have voted for the hand count, providing the necessary third vote given his earlier vote against it.

So he filed suit, asking Astrowsky to rule the the use of tabulating machines is not mandatory but optional, that the supervisors can make that choice — and that he “should not be subjected to threats and intimidation by the attorney general for voting to have hand counting be the primary initial method of vote tabulation.’’

No can do, Astrowsky said.

“Plaintiff asks this court for an advisory opinion concerning an issue that is not yet ripe,’’ the judge said.

He said courts can weigh in when there is a “present controversy’’ between the parties, “not just a difference of opinion about what the law permits or requires.’’

At best, the judge said, a declaration about whether a hand count is permitted as an alternative to a machine count might be mounted by “collective action of the board, if it can be sought at all,’’ and not by a single supervisor.

That’s only part of the problem with seeking court action, he said.

“Plaintiff does not claim that he has been denied the ability to vote on any board action, only that his ability to ‘vote according to his conscience’ has been chilled by the attorney general’s advice that the board risks legal penalties if it — acting as a board — violates the law,’’ Astrowsky wrote. “This is not a threat of injury to any legal right that plaintiff possesses, and he has cited no authority to the contrary.’’