Pima County has asked the Arizona Attorney General and Secretary of State for legal advice on performing hand counts of some of the races on the November election ballot.
Pima County Administrator Chuck Huckelberry said the county wants an interpretation of the law from state officials before agreeing to the hand count to ensure the county doesn’t face legal action.
The issue, Huckelberry said, comes from state law that doesn’t allow counties to conduct hand counts on non-contested elections. “The statute is probably out date,” he said.
State law allows for hand counts of ballots in elections for statewide ballot measures, contested races for statewide office, contested federal offices and contested Legislative races.
But the law also notes: “If there are no contested races as prescribed by this paragraph, a hand count shall not be conducted for that precinct for that election.”
Huckelberry said he’s concerned the county would be in violation of the law if a hand count of a bond election question is conducted because it is not a contested election and not one of those identified in state law.
The search for advice follows a request from the Pima County Elections Integrity Commission, which in September asked the Board of Supervisors to consider a hand count of ballots for one of the seven bond questions, one Tucson City Council election and one city ballot proposition.
The questions and candidates to be hand counted would be selected randomly.
Pima County Republican Party Chairman Bill Beard said Huckelberry has a too narrow interpretation of the law.
“Mr. Huckelberry position about this as a possible felony doesn’t stand on its face,” said Beard, who also sits on the Elections Integrity Commission.
He noted that the county already exceeds the law when it comes to hand-count provisions because it selects ballots from more than the legally mandated two-percent of county precincts.
Commission member and former Pima County Democratic Party Chairman Jeffrey Rogers agreed the county seemed to be taking an overly cautious approach.
“You can always do more than the law allows but not less,” Rogers said.
The law’s silence on county bond elections should not be interpreted as meaning it precludes a hand county, he said.
“That’s a general rule of statutory interpretation that attorneys follow,” said Rogers, who is a practicing criminal defense attorney.
Beard said the commission wanted the hand count to verify that new elections tabulating hardware and software the county purchased last year works properly.
The hand counts would be done as a check after electronic counts to ensure the technology works as advertised.
Pima County Elections Department Director Brad Nelson said the new systems are common in other regions.
“This equipment, hardware and software, has been used in elections across the country and in Arizona,” Nelson said.
Pinal County has the same system, which Nelson said was used in the 2014 elections. The city of Tucson also has the same system in place.
Pima County bought the systems from Omaha, Neb.-based Elections Systems and Software, which is one of the top manufacturers of elections tabulation products in the country.
Nelson said the main difference with the new system is how it reads ballots.
The previous system used an optical scanner to read markings on the ballots while the new one creates a scan of the ballot and analyzes the entire document.
Beard said a hand count was necessary in light of recent elections history, especially the 2006 Regional Transportation Authority election.
“Based on his (Huckelberry’s) history, he has looked sideways at problems in the elections department,” Beard said.
The 2006 RTA election has was contested in the courts but survived all legal challenges posed as well as an attorney general’s office review.
Huckleberry said he anticipates having feedback from the state in time for the Oct. 20 board of supervisors meeting.
He said he would not recommend the board order elections officials to conduct a hand count of a bond question unless direction from the state makes clear the county would not stand in violation the law in doing so.
