Rep. Shawnna Bolick, R-Phoenix, did not respond to requests to discuss her measure or answer questions.

 Howard Fischer / Capitol Media Services 2019

PHOENIX — A Republican lawmaker wants to allow the Arizona Legislature to overturn the results of a presidential election, even after the count is formally certified by the governor and secretary of state — and even after Congress counts the state’s electors.

The proposal by Rep. Shawnna Bolick of Phoenix contains a series of provisions designed to make it easier for those unhappy with elections to go to court.

Included would be allowing challengers to demand a jury trial and, more to the point, barring a trial judge or an appellate court from throwing out the case, even for lack of evidence, before the jurors get to rule.

That would affect the rules of court procedures that are set up and overseen by the Arizona Supreme Court, on which her husband, Clint Bolick, serves.

But the most sweeping provision would say that, regardless of any other law, the Legislature retains ultimate authority in deciding who the state’s presidential electors are.

And it would spell out that lawmakers, by a simple majority, could revoke the formal certification of the election results and substitute their own decision at any time right up to the day a new president is inaugurated.

Legal, practical and constitutional issues

It’s not clear exactly how that would work.

Congress counts each state’s electoral votes and announces two weeks before Inauguration Day who was elected, which is Shawnna Bolick’s proposed deadline for state lawmakers to make a final decision whether to change the electoral tally.

Absent Congress reconvening to recount the tally — something that may not be legal under federal law — there is no way to recount or change the vote.

Potentially more problematic, Bolick’s House Bill 2720 says lawmakers could take that action “without regard to whether the legislature is in regular or special session or has held committee or other hearings on the matter.”

That by itself would appear to violate the Arizona Constitution, which spells out when the Legislature is, in fact, in session and when it can act.

More practically, Bolick’s proposal does not explain how there even could be a majority vote if there is no formal, on-the-record vote at a nonexistent legislative session.

Reaction is swift

Bolick did not respond to multiple requests to discuss her measure or answer questions.

Video courtesy Pima County Sheriff's Department

But Democratic Secretary of State Katie Hobbs wasted no time in reacting, calling the proposal “breathtaking.”

“So really, we should just get rid of the presidential election altogether?” Hobbs said in a Twitter message. “In reality, that’s what this bill would do.”

Julie Erfle, a Democratic political consultant, was a bit more succinct, saying that Bolick “gives AZ voters the middle finger.”

Not the first effort

Bolick is not the first Republican to advance the argument that lawmakers can trump voter decisions.

Rep. Mark Finchem, R-Oro Valley, has repeatedly argued that the U.S. Constitution gives Arizona lawmakers “plenary authority” to determine who gets the state’s electoral votes.

But the Legislature was not in session and House Speaker Russell Bowers rebuffed his efforts to call a hearing of the House Federal Relations Committee, which Finchem chaired last year, to look at ways the 2020 election could have been tainted. Bowers said state law is clear that the electors are selected based on the certified voter count.

So Finchem and others decided to conduct their own unofficial hearing away from the state Capitol in late November to hear allegations from Donald Trump’s legal team that the election was rigged. That event had all the legal authority and effect of a political rally.

Bolick seeks to get around that with her proposed law specifically authorizing a legislative override.

More monitoring would be required

Aside from legislative veto of election results, Bolick’s HB 2720 seeks to put into statute other ways that election results can be monitored.

For example, it would require counties to create digitized images of all ballots, which would be available to the public to review.

She also wants the public to be able to monitor what happens when a ballot cannot be read by tallying equipment, perhaps because of stray marks or because the individual voted for more than one candidate for an office.

That normally involves election workers from both parties reviewing the ballot, attempting to determine the voter’s intent, and creating a new ballot that could be fed through the machine. Bolick wants the images of these duplicated ballots posted on a county website within 24 hours.

Barring judges from ruling without juries

She also wants to expand an existing law that now allows for up to three observers representing candidates or political parties at the counting center. HB 2720 would require there also be at least 10 individuals from the general public who are registered voters in the county.

Then there’s the issue of how courts have to handle election challenges.

There were a series of lawsuits following now President Biden’s victory over then-President Donald Trump in Arizona. Those included one by Kelli Ward, who chairs the Arizona Republican Party, who contended there were mistakes made in the process of duplicating ballots.

A trial judge agreed to have a review of a random sample of 1,626 of these duplicated ballots, which did turn up errors.

But the Arizona Supreme Court, reviewing that case, said the error rate was no more than 0.55%.

Chief Justice Robert Brutinel said extrapolating that out over the 27,869 ballots that had been duplicated would have gained Trump no more than 153 votes, which would not have affected the outcome of the Arizona election that Biden won by more than 10,000 votes.

The Arizona Supreme Court unanimously affirmed Biden’s win in the state.

Bolick’s bill would have required the case to go to a jury regardless of merits and precluded the trial judge — and, ultimately the Supreme Court — from concluding ahead of a jury trial that the case had no legal merit or practical chance to succeed.

The same would apply to challenges to future election returns if her bill becomes law.

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