Senate Republicans want tighter specifications on how electronic ballot tabulators are tested prior to elections, but the proposed legislation itself falls short on specifics.
The proposal would require public testing of all electronic ballot tabulators no more than 25 days prior to the start of early voting, with a 48-hour notice to the public before the testing begins. The Secretary of State would be required to give all candidates on the ballot and their political parties notice of the testing as well, to give them the option to observe.
Following the testing, the machines would be sealed until the start of early voting, and anyone who breaks the seal and tampers with the machine or reprograms it, and does not perform another test, would be guilty of a felony.
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Sen. Wendy Rogers, the chair of the Senate Elections Committee, said that Senate Bill 1288 legislation would “ameliorate some concerns of voters” and provide consequences for anyone who tampers with the tabulators.
Sen. Priya Sundareshan, D-Tucson, on Feb. 15 told the other lawmakers on the committee that she voted against the bill because Arizona already requires logic and accuracy testing for its tabulators — which are already open to the public, though voters rarely attend — adding that it would be unfortunate for someone to be charged with a felony if they accidentally broke a tamper-evident seal on a tabulator.
“The reason for this bill is based on an unfortunate conspiracy theory,” Sundareshan said. “There is no need for this.”
The legislation is aimed at claims from Republican candidates who lost their elections that current logic and accuracy tests required for tabulators are insufficient, as well as conspiracy theories surrounding the 2022 general election in Maricopa County. In her court challenge to the results of the 2022 gubernatorial election, which she lost to Democratic Gov. Katie Hobbs, Republican Kari Lake alleged that someone tampered with the tabulators or the ballot printers between the logic and accuracy testing and the date of the election, causing issues at the polls and swiping victory from Lake.
While there were ballot printing problems during the 2022 general election in Maricopa County, which resulted in tabulators rejecting some ballots, all of the rejected ballots were later counted.
An independent investigation into the Election Day issues, headed by former Arizona Supreme Court Chief Justice Ruth McGregor, concluded that there was no tampering with the printers or tabulators.
The investigators determined that the issue was equipment malfunction caused by ballots that were too long, printed on paper that was too heavy for the ballot printers to handle.
The Republican-backed bill would require that ballots used during pre-election testing were the exact same — using the same paper and printing techniques — as those to be used during the actual election.
While it makes sense to test ballots printed in the same way and on the same paper that will be used in the election, especially to avoid the problems that happened in 2022, a lobbyist for county elections officials told the lawmakers that counties currently avoid using exact copies of ballots in tests for a specific reason: to avoid accidental comingling of test ballot and real ballots.
Jen Marson, executive director of the Arizona Association of Counties, said this helps them ensure that none of the test ballots are misplaced and inadvertently counted during the real election. But that was far from Marson’s only issue with the bill.
“We do have a lot of concerns,” she said.
The proposal would also set up an “accuracy board” to certify the accuracy of the tabulators, and would give each political party the option to designate an expert in elections or technology to observe the testing.
Each tabulator would have to tabulate a certain number of test ballots without error before being approved for use in an election. Errors would be reported to the accuracy board and, if the board decided the error was severe enough, the machine could not be used in the election unless the issue causing the error was fixed and the machine retested.
Although she said it could be possible to fix the bill to make it work, the bill is missing numerous necessary definitions, Marson said, including who will make up the accuracy board and how its members would be chosen, as well as what constitutes an error.
Paper jams and ballot misreads — or when a tabulator rejects a ballot and it must be fed through a second time — are both common issues with tabulators, she added, and the bill does not specify whether those would be considered errors.
The bill would also require that records of all past pre-election testing be available to observers during the testing, and for the county recorder or top election official to keep records of new testing.
Having all previous tests available would also be a big ask, Marson said, since it takes a court order to unseal them.
The original sponsor of Senate Bill 1288 is Sen. Jake Hoffman, R-Queen Creek, but in its current iteration, the bill is entirely owed to Rogers, a Flagstaff Republican, who offered what’s called a “strike everything” amendment to Hoffman’s bill.
Strike everything amendments completely wipe out the original language of a bill to replace it with something new. Hoffman’s bill originally concerned how illegible ballots were adjudicated by elections officials.
After a lengthy day in the legislature, Sen. Sonny Borrelli, R-Lake Havasu City, railed against Sundareshan’s claim that the bill was based on a conspiracy theory. But the majority of his response pertained to the initial topic of the bill — electronic ballot adjudication — which the updated bill does not mention.
“This is not a conspiracy,” Borrelli said. “This is fact. And I’m sick and tired of hearing it from the Left. Saying, ‘Oh, The Big Lie, The Big Lie.’ The big lie is the denial that anything happened. Because things happened.”
He cited claims that ballot chain of custody requirements weren’t followed in 2020 and 2022 — claims that were rejected in court because of a lack of evidence that any errors affected election results — and that early ballot signatures weren’t properly verified, an argument that Lake made and was rejected by a judge.
“We proved that there was dead voters,” Borrelli continued. “People voted that shouldn’t have voted. So, to say this is a conspiracy theory is horse hockey.”
While the Senate’s partisan review of the 2020 election in Maricopa County alleged nearly 300 dead voters cast ballots, then-Attorney General Mark Brnovich, a Republican, said only one of those claims was valid — and it was a Republican woman in Scottsdale who voted for her dead mother and had already been prosecuted.
Borrelli added that he was tired of American soldiers dying for nothing.
Former Secretary of State and current Sen. Ken Bennett, R-Prescott, corrected Borrelli on the topic of the bill, but said he loved his fellow senator’s passion.
Bennett shared that when he was secretary of state, he traveled around Arizona to witness logic and accuracy testing in every county, so he appreciated Rogers’ focus on ensuring the machines weren’t tampered with after those tests.
“The tests are a snapshot of how the machines are operating at a specific moment in time,” he said. “If you allow the machines to be tampered with between then and the election, then the test is no use.”
While Bennett still voted in favor of the proposal, he added that it needed work and that Marson brought up several valid problems with it, adding that election laws needed to be doable at the county level since counties administer Arizona’s elections.
Rogers said she’d do whatever it takes to make the bill workable.
The bill passed out of the Senate Elections Committee by a vote of 4-3 along party lines.
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