PHOENIX – The board of supervisors in a southern Arizona county will meet next week to consider counting nearly all the ballots cast in-person on Election Day, despite an earlier court order limiting the hand-count driven by unfounded distrust in machines that tabulate votes.
The actual count may start before Tuesday's planned meeting of the Cochise County board, and the local prosecutor is warning starting it at any time may lead to criminal charges.
The moves come just days after a judge ruled that state law bars expanding the normal small hand-count audit of early ballots. He also ruled that a 100% hand-count of Election Day ballots is illegal because any expansion for precincts chosen for those reviews must be picked at random.
The Republican-dominated Cochise County board is taking that part of the order literally, proposing to expand the count to 99.9% of the ballots cast on Election Day, apparently to meet the random standard.
Elected County Attorney Brian McIntyre told the board and its lawyers in a Thursday letter that going forward with the plan could lead to felony charges against the participants for violating numerous laws.
“I have alerted the appropriate authorities to the potential violations based on the statements of two elected officials connected to this,” McIntyre wrote. “It is my sincere hope that no action will be required of them and that the rule of law will prevail.”
He noted that ballots are held by the county elections director, and removing them or interfering with her work to certify the results would be among the felonies being committed if Republican County Recorder David Stevens takes the ballots to count them by hand.
It will also not go unchallenged by the group that sued and won a court order on Monday to stop it. They vowed another challenge if Cochise County officials veer from the court order.
“We are considering our legal options," Lisa Cutler, spokeswoman for the Alliance for Retired Americans, said in a statement. ”We will take action if Defendants move to violate the court’s order or violate Arizona law.”
It is unclear when the hand-count will start. Stevens said earlier this week he hoped to start on Monday. And the agenda for Tuesday's meeting says the count could start before board approval. But Stevens is now not answering direct questions on the issue.
The item notes that Stevens has lined up more than 200 volunteers to tally the results of four races.
“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 agenda says. “Two other results of this hand count will be simply a larger random selection audit of machine accuracy and a test of our back-up plan in case some or all of our machines become compromised or fail at last minute.”
The two Republicans who hold the majority on the county board and Stevens are appealing Monday's decision, but the state Supreme Court refused to fast-track the appeal in an order released Friday. The Arizona Court of Appeals also refused to expedite it, instead setting a normal briefing schedule that would put any decisions months down the road.
Board Member Peggy Judd did not return a Friday call seeking comment, and Stevens declined to comment further on how and when he would conduct the hand count of the vast majority of the nearly 12,000 votes cast at polling places on Tuesday. Another 27,000 voters cast early ballots, but there's no way around a Pima County Superior Court judge's ruling blocking the expansion of the normal 1% hand-count audit of those ballots.
State law lays out the rules for hand-count audits that are used to verify the machines used to tallying votes in Arizona. For Election Day ballots, counties can choose 2% of the county's precincts, or two precincts, for the hand-count. The ruling says the board can expand that, but only if it is done randomly.
The Cochise County moves could delay the county's required Nov. 23 election certification and ripple up to the state level.
The normal small hand-count is set to be conducted Saturday by the county elections director, who opposes the expansion. The four races to be checked were chosen by lot earlier this week with representatives of the political parties present.
Stevens did his own race choice, but Democrats refused to participate, said Jim Barton, a lawyer representing the Arizona Democratic Party.
“I think this little cutesy 'we'll just do 99%' shows a kind of disregard of the law that's just shocking," Barton said. “The fact that the elected officials in Cochise County are engaging in this kind of behavior is embarrassing.”
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