Cochise County considers hand-counting ballots, but lawyer says no

PHOENIX (AP) - Cochise County officials were prepared to move ahead with a plan to hand count all ballots in November’s election alongside the normal machine count on Tuesday, but at the last minute the county attorney told the board they had no legal authority to do so.

The advice from Chief Deputy Cochise County Attorney Christine Roberts seemed to stun two members of the county board who are pushing the hand-count, egged on by voters who believe in false claims of fraud in the 2020 election. They had brought the proposal to the three-member board just a day before early voting starts and ballots are mailed to residents across the state for the Nov. 8 election.

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"In this case, I don’t get where we would be breaking the law if we chose to train a group of volunteers and put them the driver’s seat for a minute hand-counting," Republican Supervisor Peggy Judd said. "I don’t know that this is something that we can’t look into. I feel very strongly that we can."

Judd said she was acting to try to assuage voters who believe there are problems with voting systems in the state, although she praised Cochise County’s elections department and county recorder, who together oversee elections. Republican Supervisor Tom Crosby also proposed the hand-count, while board Chair Ann English, a Democrat, did not take a public position.

County Recorder David Stevens, a Republican, said the proposal came mainly from conservative Republicans who said they had signed up 140 volunteers to hand-count ballots. Stevens acknowledged in an interview and again before the board that there would be concerns about results being illegally leaked before they could legally posted at 8 p.m. on Election Day.

Arizona counties can start tabulating early and mail ballots that are used by more than 80% of the state’s voters as soon as they are signature-verified, but the results are tightly-held. In Cochise County, east of Tucson, only the election director knows those results before they are released.

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The heavily Republican county had about 62,000 votes cast in the 2020 general election, but Stevens said a hand count could be done fairly quickly. Under state law, a small percentage of ballots in selected races go through a mandatory hand-count with bipartisan teams to check the accuracy of vote-counting machines after all the votes are counted.

A complete hand-count would be much more difficult. Stevens said 31 races county-wide races will have to be tabulated, plus additional races like school board members.

A similar hand-count push in rural Nevada’s Nye County has prompted a lawsuit by the American Civil Liberties Union, which argues it risks illegal release of election results and raised other issues. It is among the first counties in the nation to act on election conspiracies related to mistrust in voting machines.

Local physician Joseph Patterson is pushing the plan and said the hand-count is needed to restore confidence in the election.

"All we’re trying to say is let’s reestablish trust, try to reestablish unity with the people," Patterson said. "Find results that everybody trusts, accept them and then move on. And let’s get over this fighting, this bickering."

There’s no evidence in Arizona or elsewhere in the country that fraud, problems with ballot-counting equipment or other voting issues had any impact on the results of the 2020 election. Yet many Republican voters who back former President Donald Trump have been convinced by him and others that there is.

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Nearly 45 minutes into the board session called to study the issue and after Crosby began pushing the board to vote to proceed, Roberts dropped her bombshell.

"There’s nothing that allows a separate process within the Election Procedures Manual, nor is it in the (laws), that give the board any power to do this," Roberts said. "We are three and a half weeks away from an election. The Purcell doctrine says you don’t change election procedures that close to an election."

That’s a reference to a Supreme Court case where the court ruled that changes close to an election are barred.

But Judd said she’s not giving up, and said she would ask the state attorney general for an opinion on the matter.

Sophia Solis, a spokeswoman for Arizona Secretary of State Katie Hobbs, a Democrat running for governor whose office oversees state elections, said in an email that the proposal comes with a host of potential problems and legal pitfalls.

"To allow hand counts of all ballots would be a wholesale change of state policy, require extensive logistical changes (staffing and space), extend the length of time required to tabulate results by weeks, produce inaccurate results, and potentially damage or misplace ballots, which could impact the ability to conduct recounts or review in legal challenges," she wrote.

Solis said it also could run afoul of state and federal law on handling and retention of ballots.

English acknowledged that the county attorney’s opinion took the wind out of the hand-count proponents sails.

"Sometimes you ask for legal help and it doesn’t always give you the answer that you like," English said.