SOS threatens Cochise with lawsuit over hand count proposal

The Secretary of State’s office is warning the Cochise County Board of Supervisors that it will sue the county if it tries to do a full hand count of all ballots in the November general election.

“If the Board votes to proceed with a full hand count – putting at risk the accuracy and integrity of our elections – the Secretary will take all available legal action to ensure that Cochise County conducts the 2022 General Election in compliance with Arizona law,” Kori Lorick, the Secretary of State’s elections director, wrote in a letter dated Oct. 19.

That legal action would include a lawsuit seeking to block the hand count, confirmed Murphy Hebert, a spokeswoman for the Secretary of State.

The county board of supervisors is set to vote on Monday on the proposal. Two Republican supervisors brought up the idea at a meeting on Oct. 11, one day before early voting began in Arizona.

The proposal wouldn’t do away with traditional machine tabulation of ballots, the method that’s used around the state. Instead, the hand count would come after machine tabulation, but would need to be completed before the supervisors certify the results of the Nov. 8 election.

The manual count, its proponents argue, would increase faith in the county’s election system.

But Lorick wrote a full hand count could introduce new problems. “Notably, hand counting is necessarily time intensive and prone to human error,” she wrote.

Plus, she added, the county has no legal authority to carry out a full hand count, which would deviate from standard state election procedures.

“While A.R.S. § 16-602 and the Elections Procedures Manual lay out procedures for a limited post-election hand count audit, nothing in Arizona law authorizes the Board to conduct a full hand count outside of those procedures,” Lorick’s letter states.

The Cochise County Attorney and the Arizona Legislative Council have also already issued legal opinions indicating that a full hand count – outside of narrowly-defined circumstances – would be unlawful.

“A county recorder may not authorize a hand count of all ballots in addition to using the electronic tabulating equipment unless it becomes impracticable to count all or some of the ballots with tabulating equipment,” the legislative council wrote in a memo dated Oct. 12, sent in response to an inquiry from Rep. Gail Griffin, R-Hereford, who lives in Cochise County.

Hebert said that the point of telling the county to stop now – rather than simply letting the situation play out – is to avoid further issues at this late stage.

“Upending the administration of an election that has already begun risks creating chaos and confusion for voters and threatens both the accurate counting of votes and the timely certification of election results,” she said in an email.

The hand count proposal stems from claims that Arizona’s elections have been marred by fraud – an idea that’s circulated widely in some Republican circles. The board of supervisors’ agenda for Monday states that a number of people are ready to participate in a hand count to ensure that elections are “reliable and secure.”

“Over 100 volunteers have mobilized and seek to be vetted, trained and participate in a hand count of all ballots in our County for the upcoming General Election,” an agenda item states. “They are wishing to take part in this way to help people (including a few of the participants) who have lost trust in elections to see that elections are reliable and secure in our county.”

The three-member board is composed of two Republicans, who have supported the proposal, and one Democrat, who opposes it.

Ann English, the Democrat, said she’s hoping her colleagues agree to pull the item off the agenda on Monday.

“The 100% hand count is not an authorized decision the (board of supervisors) can make and if you do, you will be breaking the law,” she wrote in an email.

Peggy Judd, a Republican supervisor, said she’s seen other legal opinions about the proposal and she still thinks it’s a useful idea, though she didn’t specifically say how she’ll vote on Monday.

“This is not my own agenda, but support for many voters who have lost confidence in elections. I am determined to show them that we can be transparent and open to their will in this most important political task that we have as Americans, our vote,” she wrote in an email. “This is just a small step in our county. Much more can and should be done to secure voter confidence. But you have got to start somewhere,” Judd added.

Tom Crosby, the other Republican on the board, said he hadn’t seen the Secretary of State’s letter, but he’s seen evidence of problems with electronic tabulating machines.

“I’m not partisan about this,” Crosby wrote in an email, saying that he had read “a couple hundred pages of what I would call likely evidence that the machines are not properly certified.”

Cochise County had 75,000 registered voters for this year’s August primary election and that number will likely be higher for the November general election.