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As they tour the state to try to convince county decision-makers to hand-count ballots in the upcoming presidential election, Republican lawmakers in Arizona are emphasizing one point: They believe it’s legal here.
“Once again, you aren’t mandated to use machines,” state Sen. Sonny Borrelli told the three Republican supervisors in Gila County last week. “Hand count, paper ballot. I’m open for questions.”
Borrelli and state Sen. Wendy Rogers, both Republicans, told Mohave County’s board the same thing last month. So far, supervisors have been reluctant. In Mohave, which spans the northwest corner of the state and includes Kingman, supervisors launched a trial to study the resources hand-counting would take, and in Gila, the mountainous county east of Phoenix, they politely said they might consider the idea at a future meeting.
This marks the latest in a series of attempts from GOP activists to use a lack of specificity in state law to challenge time-tested procedures and create doubts about the accuracy of elections. Other such efforts, eventually blocked by the courts, include attempts to end mail-in voting and stop the certification of midterm results.
But the pitch that hand-counting ballots might be legal is making the idea, currently popular among Republican voters skeptical of the security of machines, harder to reject. If a county moves forward, there will certainly be a court battle at taxpayer expense.
Meanwhile, the debate over legality is pulling attention from the well-known problems that crop up when trying to hand-count ballots, an especially challenging task in a presidential election with dozens of contests on each ballot and high turnout.
“This whole idea of a hand count is a total red herring,” said Democratic attorney Tom Ryan. “Time and time again, science has proven that the idea that hand counts are more accurate than tabulators is just a myth.”
Study after study has found that hand-counting ballots is far less accurate and efficient than counting with machines, which are simply better than people at tasks such as repetitive tallying. Arizona’s ballot is notoriously long, adding to the challenge. As counties already struggle to find election workers, it’s unclear how they would find the dozens or hundreds of bipartisan teams needed for the task. In addition, hand-counting takes time, which has the potential to delay election results.
On the legal question, Borrelli may be right that nothing in Arizona’s election statute nor its Elections Procedures Manual, which has the force of law, specifies that ballots cast in all elections must be counted by machines, according to several election law attorneys. The Arizona Legislative Council, the legal research arm of the legislature, wrote last year that nothing in the law “specifically requires a county to use electronic tabulating equipment or prohibits a county from hand counting all its ballots.”
Still, Secretary of State Adrian Fontes, along with many election attorneys, believe it’s illegal based on other sections of law.
Former state elections director and Republican attorney Eric Spencer pointed at many provisions, such as the section of the manual that states that counties can only conduct a “manual” count of ballots “if it becomes impracticable to count all or some of the ballots with tabulating equipment.” One example of when it may be impracticable, attorney Tom Ryan said, is if a small jurisdiction, such as a school district, is conducting its own election with limited races and a small number of ballots cast.
As Fontes, a Democrat, rewrites the Elections Procedures Manual this summer, he has the chance to be more specific about when counties must use machines and when they may hand count ballots. It’s unclear whether he will.
Fontes sent Mohave County supervisors a letter last month as they considered whether to consider hand counting, warning him that he believed they would be breaking both federal and state laws if they did and asking them to “consider the negative consequences to election systems, voters and taxpayers that would result from the introduction of election procedures which are untested and have no legal basis.”
But Borrelli told the Mohave supervisors not to be discouraged by a potential lawsuit. “If they want to sue, then bring it on, because I have an army behind me that is ready to fight,” Borrelli said, standing in front of residents in a crowded boardroom.
Laws on the topic vary across the country, and counties in other states are feeling pressure as well. In Texas, a Republican group is traveling across the state in what they are calling a “hand count road show,” demonstrating a method of hand-counting they feel would provide transparency – one that raises numerous questions as to how the results would be tallied and verified.
Fontes points to case law and federal law
Borrelli told Gila supervisors that he has recently spoken with county attorneys in the state and when they have told him the law doesn’t specifically allow for a hand count, he has pointed out that it doesn’t specifically prohibit it, either.
In Mohave, Borrelli said that “the media and other supervisors in other counties want to lead people on to believe that myth.”
Spencer, the former state elections director, believes the language in state statute and the Elections Procedures Manual makes it fairly clear that machines must be used. Along with the line in the manual about hand counting only when machine counting “becomes impracticable,” a line in state statute implies all ballots will be “automatically” counted.
In Fontes’ letter, he cites case law that explains county supervisors have only those powers “expressly conferred by statute,” and cannot act outside of those. He also wrote that, under federal law, the state must follow the plan it’s outlined for using secure voting systems under the Help America Vote Act.
There are also no processes for how hand counting should work. That could lead to lack of proper ballot tracking and security, Fontes wrote. And the long timeline for counting, he wrote, could threaten the county’s ability to “timely canvass election results within 20 days of the election, as required by state law.”
But Republican attorney and state Rep. Alexander Kolodin, of Scottsdale, disagrees, saying that a few sections of statute and the manual imply that it’s a choice whether to use machines, including a line that says rules “apply to all elections where tabulating devices are used,” and another that provides a rule for any election “in which the votes are cast on an electronic voting machine or tabulator.”
Cochise County case reviews hand-counting topic
Kolodin believes the state’s law not only allows counties to hand-count all ballots for the initial count of ballots, but also during the partial hand count audit of ballots that comes after the initial count and has a specific process dictated by state law. He represented Cochise County supervisors in oral arguments on Tuesday as they appealed a November decision from a trial court that said they did not have the right to move forward with a full hand-count audit.
While that case addresses only how many ballots counties can hand-count during the audit, appellate court judges on Tuesday also wanted to hear opinions on whether machines can be scrapped altogether for the initial count. Judge Peter Eckerstrom implied it would be nice for counties to have clear direction prior to the presidential election.
“Aren’t elections the kind of thing you really want prospective clarity on?” he asked. “And no ambiguity on? And wouldn’t a published opinion from the Court of Appeals and perhaps ultimately from the Supreme Court, no matter which way it goes, provide necessary clarity, so our boards of supervisors and our elections officials going into the next election know exactly what they can and can’t do?”
Judge Michael Kelly said it’s unclear how many counties could be interested in hand-counting ballots in 2024.
Rogers told supervisors in Gila and Mohave that they will be seen as heroes if they choose to hand count instead of using machines, comparing them to soldiers at war.
Along with Gila and Mohave, supervisors in Cochise and Pinal counties have said they want to explore what it would take to hand count ballots, with Pinal starting but then aborting a trial.
Other places have already tried hand-counting ballots, and have found it difficult to get accurate results, in addition to taking longer than expected. The most significant example of that was in Arizona, when Cyber Ninjas attempted to hand count the 2.1 million ballots cast in Maricopa County’s 2020 election - but it took more than 100 workers months, millions of dollars, and they couldn’t get it right after multiple attempts.
Gila County Supervisor Steve Christensen told Votebeat he is interested in trying to improve voter confidence. He isn’t sure if hand-counting will do that, he said, and most important to him is not the method - but getting the results right.
Jen Fifield is a reporter for Votebeat based in Arizona. Contact Jen at jfifield@votebeat.org.
