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Tuesday afternoon the Arizona Court of Appeals in Tucson heard arguments on behalf of the Cochise County Board of Supervisors and County Recorder David Stevens as to why county officials should have been allowed to audit all of the ballots cast in person on Nov. 8, 2022, if not also all of the early ballots.
The Board of Supervisors voted (2 to 1) back in October to audit all ballots cast at the county’s 17 voting centers on General Election Day. There was also some discussion off and on about auditing all early ballots cast by mail or in drop boxes but no vote was taken.
Arizona law states a hand count audit is to occur if a county opts to use electronic or machine tabulators to tally the votes marked on ballots. The legislative intent is to ensure voters there is a mechanism available for confirming the accuracy of the machine count.
But a Maricopa County judge blocked Cochise County from conducting any expanded hand count, issuing an order Nov. 7 as part of a lawsuit filed by Arizona Alliance for Retired Americans (AARA) and one of its members from Cochise County.
The judge ruled any hand count audit which did not strictly follow Arizona Revised Statute 16-602 would be illegal. With the judge’s order in place, then-Elections Director Lisa Marra oversaw the audit in accordance with the same process Cochise County has followed in previous elections.
That audit, according to public records, looked at votes cast in four races from 2 of the county’s 17 voting centers (representing 1,402 of the nearly 12,000 ballots cast on Election Day) and 400 of the more than 35,000 early ballots cast. There was no discrepancy reported.
The Cochise County defendants appealed, but the Arizona Court of Appeals did not announce until June that a three-judge panel desired to hear oral arguments in addition to the various briefs already filed by the parties.
Attorney Bryan Blehm argued Tuesday on behalf of the Cochise County supervisors, while Veronica Lucero of the Davillier Law Group in Phoenix argued on behalf of Stevens. Aria Branch of the Washington D.C.-based Elias Law Group came to Tucson to reaffirm arguments previously put forth by AARA.
A decision by the Court of Appeals could take a few months, although the judges seemed to understand any ruling they make will be taken before the Arizona Supreme Court.
One argument put forth Tuesday by the Cochise County defendants involved the revelation in late December that hundreds of lawful ballots in Pinal County were not counted or included in the election results canvassed Nov. 21 by the Pinal County Board of Supervisors.
Pinal County’s Democrat and Republican committees had conducted a hand count audit in the days after the election involving two precincts (representing roughly 420 ballots) and 1,041 of more than 103,700 early ballots. The audit found only one ballot in which the machine tabulator did not discern a vote in three of the audited races but which were counted following the human inspection.
Yet none of the hundreds of uncounted ballots in Pinal County were discovered during the audit. And officials there have publicly conceded those missed ballots would never have been added into the vote totals (for attorney general and superintendent of public instruction) if a recount had not been ordered for those races due to the close margins between the candidates.
One key fact neither side presented to the appellate judges is that a hand count audit is often not performed in many counties after an election. This is because while a county’s elections director oversees the audit process, the work itself is actually conducted by volunteers from each of the counties’ main political parties.
Therefore, if a sufficient number of volunteers are not named by two county party committees (including the Libertarian Party in a few counties) then a hand count audit cannot be performed.
There is no provision in state law to permit an audit to be conducted by county staff or other volunteers, leaving voters without any of the safeguards the legislature intended for ensuring voters that machine tabulation totals are correct.
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