After suffering setbacks in court, Arizona officials who have sought to conduct a hand count audit of a rural county’s election results are considering a scaled down version of their plan that could still inject chaos and delay into the process of certifying the state’s results.
The confrontation in Cochise County has led to worries of potential delays in determining the winners in a state where several key races remain too close to call. The current deadline for Arizona counties to certify results is November 28 – or 20 days after the final day of voting.
As of Friday afternoon, CNN had not projected winners in contests for Arizona governor, secretary of state and a US Senate seat that could determine party control of the chamber.
“Some of these races could be decided by a few thousand or even a few hundred votes,” said Alex Gulotta, Arizona state director of All Voting is Local, a voting rights group. “In a good election, there are something like 60,000 votes in Cochise County, which is enough to impact the outcome.”
Propelled by former President Donald Trump’s falsehoods about fraud in the 2020 vote, distrust of election systems has manifested in pushes to tabulate election results by hand, with the most high-profile effort being a widely panned “audit” of ballots in Maricopa County, Arizona. Similar disputes erupted in Nevada and New Mexico ahead of the midterms, as well as in unsuccessful lawsuits that targeted the use of tabulation machinery.
Cochise County, home to roughly 125,000 Arizonans, had planned to audit 100% of ballots by hand. The proposal has divided the local government, pitting those in favor of the hand count against Cochise’s election director and the county attorney, who has warned that the gambit might break the law.
Voter advocates, as well as Arizona Secretary of State Katie Hobbs, the Democratic candidate for governor, caution that such an audit would require months of advance planning and would be prone to human error.
The new “expanded hand count” that’s being floated stops well short of the initial all-ballot proposal, but critics say it will still add confusion to the process.
Conflicts between machine and hand counts would spark “a whole series of litigation about whose numbers get to count and which of these numbers are going to count, which we should not be doing,” Gulotta said.
On Thursday, a state appeals court made clear in a 2-1 vote that it would not be reversing a court order barring the full hand count in time for the plan to be revived for the midterms. But a lawyer for Cochise County Recorder David Stevens – a proponent of the hand audit – said that the county isn’t giving up on its efforts to conduct a hand conduct that goes beyond the usual procedures.
The attorney, Alex Kolodin, told CNN Friday that they were “disappointed” that the Arizona appeals court “thought of will of bureaucrats should prevail over the will of elected officials.”
“We are going to continue to work toward an expanded hand count to the maximum extent permitted by the trial court order,” Kolodin added, refusing to go into further detail. Stevens declined to comment when reached by CNN on Friday and referred questions to Kolodin.
The County Board of Supervisors, where two of the three members are favor of hand counting the ballots, has scheduled a meeting for Tuesday on whether to modify its initial approval of a 100% recount.
In court testimony last week, Stevens said that if the broader hand count he sought produced a different count than the machine tally, he still would submit the hand audit total to the officials charged with certifying the results.
Under the usual state election procedures, Cochise’s director of elections does a post-election audit that scrutinizes 2% of the vote by hand, with a process that allows that percentage to incrementally increase only if repeated discrepancies with the machine count are found. However, the Republican majority of Cochise’s Board of Supervisors approved a plan to count by hand all of the ballots, prompting a lawsuit alleging that such an audit ran afoul of state election law.
On Monday, a trial court agreed, prohibiting Cochise officials from going forward with their plan for the full hand count. The county appealed the order, while filing requests that the appeal go straight to the state Supreme Court and that the appeal be heard in an expedited manner. Both requests were rejected Thursday night, guaranteeing that the lower court injunction will remain in effect in the time period Arizona has to determine the results.
However, Kolodin, the lawyer for the pro-hand count county recorder, told CNN that they read the injunction to permit a hand count audit of the ballots cast a precincts on Election Day, as long as the audit meets the 2% minimum and is “random,” i.e., fewer than 100% of those ballots.
Stevens, the recorder who is seeking to lead the new audit, testified in the legal challenge that he expected there to be 10,000 ballots cast on Election Day. Throughout the litigation, the pro-hand count contingency has argued the audit could be completed by the late November deadline for the county to canvass its results.
As signs have grown that some county officials want to proceed with some form of expanded hand count audit – even after the court’s injunction – Brian McIntyre, the county’s public prosecutor, this week sent a letter to lawyers for all the litigants, warning of potential criminal liability for those involved.
McIntyre also said he had notified the “appropriate authorities to the potential violations” of the law, and he copied the county’s sheriff department on the correspondence.
McIntyre confirmed the letter’s authenticity but declined further comment to CNN.