Arizona counties do not have the legal authority to order hand counts of all their ballots in an election, the Arizona Court of Appeals ruled Wednesday.
The case dates back to almost a year ago, when the Arizona Alliance for Retired Americans challenged the Cochise County Board of Supervisors and Cochise County Recorder David Stevens in an attempt to stop their plan to perform a hand-count audit of all ballots in the 2022 general election.
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The Cochise County Superior Court on Nov. 7 barred the county from conducting a full hand count, saying that the county had acted unlawfully in ordering the hand count. The court also ordered Cochise County to pay attorney fees.
The county appealed the lower court’s decision, and the Arizona Alliance for Retired Americans asked the court to dismiss the appeal, since the matter of the 2022 hand count is moot now that the election is long over. The appeals court chose to take up the case anyway, saying that counties, including Cochise, are likely to try to perform hand counts in the future.
The three-judge appellate panel unanimously ruled that the Arizona legislature has the principal obligation of safeguarding the state’s elections by passing laws that govern its procedures, and counties must abide by those laws.
“The legislature exercised this power by devising a precise system for the hand auditing of electronic voting results in [Arizona law],” Judge Michael Kelly wrote. “Accordingly, the County was required to follow the procedures mandated by the plain language of [the law] which creates a gradual, multi-step process that must be satisfied before a jurisdiction-wide hand-count audit of all precinct or early ballots may occur.”
Kelly was joined by judges Sean Brearcliffe and Peter Eckerstrom in the ruling.
Cochise County Board of Supervisors Chairwoman Peggy Judd told the Arizona Mirror on Wednesday that she was finished fighting for hand counts, even though she believes they have the “moral high ground” over electronic tabulation machines. Judd, a Republican, is far from the only member of her party lobbying for hand counts, which are notoriously inaccurate and more expensive than electronic tabulation. But those who push for hand counting portray it as a way to stop what they say is rampant election fraud, something that multiple court cases challenging the 2022 election results in Arizona have failed to prove.
Judd added that she didn’t believe the supervisors were breaking the law when they voted in October 2022 to conduct a full hand count. She added that she has complete trust in the county’s new elections director, Tim Mattix, going forward, and will support his decisions regarding procedures in upcoming elections. Mattix is the fourth person to take on the role of Cochise County elections director this year.
With the court battle resolved, Judd said voters who still want to see full hand counts in Arizona should lobby their legislators to change the law to allow them, adding that she’s received harassment from those who want hand counts in Cochise County since she’s backed off trying to make them happen.
“I’m not going to spend one more penny on legal fees,” she said, noting that the county had spent around $300,000 on legal bills over the past year.
The Court of Appeals on Wednesday ultimately affirmed the decision of the lower court, ruling that counties cannot perform a hand count audit of more ballots than is prescribed by law. Each county is required to do a hand-counted audit of a small fraction of ballots after each election to confirm that the results of tabulator counts are correct.
In those audits, counties are required to recount ballots from at least 2% of the precincts in the county, or from two precincts, whichever number is greater. Counties are only entitled to count more ballots than that if the initial audit does not square with the corresponding tabulator counts, the Appeals Court confirmed.
Cochise County argued that Arizona elections law and the Elections Procedure Manual, put out every two years by the Secretary of State, allows them to hand count any number of early ballots that they choose. The court ruled that even though the manual does give the county broader authority to perform hand counts, that snippet of the manual contradicts state law, and is therefore unenforceable.
“Although the EPM must be ‘approved by the governor and the attorney general’ before release, an EPM regulation that either exceeds its statutory authority or contradicts statutory requirements ‘does not have the force of law.’” Kelly wrote in the appeals court decision, referring to an Arizona Supreme Court ruling from 2021.
Amid the legal fight over hand counting in Cochise County last fall, then-Elections Director Lisa Marra refused to release ballots to Judd, Republican County Supervisor Tom Crosby and Stevens, the county recorder. The supervisors then sued her for failing to follow their orders to release the ballots for a full hand count, even though Marra knew that would be illegal. The supervisors asked to withdraw the suit just days later.
Marra resigned in January, saying in a letter that her work environment had become both physically and emotionally threatening, and in May she received a $130,000 settlement for her time in the “hostile work environment.”
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