Arizona Attorney General Issues Opinion Regarding Hand Counting, GOP Leader Spreads Distrust
WASHINGTON, D.C. — On Thursday, May 18, Arizona Attorney General Kris Mayes (D) reversed a prior opinion written by her predecessor, former Attorney General Mark Brnovich (R), which permitted counties to conduct hand count audits.
Asserting that Brnovich “misinterpreted the governing statutes,” Mayes, in her opinion issued on Thursday, states: “Simply put, a full hand count is only expected to occur if there are discrepancies with the electronic tabulation—not as a matter of course.” The opinion concludes that Arizona law “does not provide a county discretion to conduct a hand count of 100% of early ballots.”
Mayes’ opinion is clear: Arizona law does not permit counties to use their discretion to conduct a hand count audit or a hand count of all early mail-in ballots. This opinion stands in stark contrast with the latest actions of the Republican-led Legislature, which continues to promote distrust about electronic voting machines and their use within the state.
Just days later, on May 22, Arizona Senate Majority Leader Sonny Borrelli (R) sent a letter to all county boards of supervisors stating that electronic voting machines may not be used unless they comply with the standards of a non-binding resolution, Senate Concurrent Resolution 1037. The letter invokes the radical independent state legislature theory to support the Legislature’s authority to enforce a resolution that is not law. The letter appears to be an attempt to bypass Gov. Katie Hobbs’ (D) veto of Senate Bill 1074, a bill that would have effectively banned electronic ballot tabulators by imposing onerous restrictions.
Borrelli’s letter points to the Legislature’s passage of S.C.R 1037 to conclude that “no electronic voting systems in the state of Arizona may be used as the primary method for conducting, counting, tabulating or verifying federal elections, unless those systems meet the requirements set forth in SCR 1037.”
S.C.R 1037 states that all voting machines must meet the several criteria including: “All components have been designed, manufactured, integrated and assembled in the United States from trusted suppliers[.]” According to the executive director of the Arizona Association of Counties, while all voting machines in Arizona are assembled within the United States, it is not possible to have all components solely manufactured in the country.
In addition to the impracticality of S.C.R 1037, it is not enforceable as it is not law. Nonetheless, Borrelli asserts that the Legislature must exercise its “plenary authority.”
In response to Borrelli’s statement, Arizona Secretary of State Adrian Fontes (D) writes: “Senate Concurrent Resolution 1037, which expresses a desire to restrict the use of certain electronic voting machines, is non-binding and does not have the force of law.” Fontes also explains that “[e]lection equipment must be certified by the federal and state government by specific requirements outlined in federal and state law. That certification process is being followed in Arizona and all applicable election equipment being used in Arizona is certified. If those requirements or certification process were to be changed, it would require a regular bill to be passed by the legislature and signed by the governor—which is not the case for this non-binding resolution.”
During the 2022 midterm elections, Arizona was a hotbed for election denialism and conspiracy theories, particularly as it pertains to electronic voting machines. In one rural Republican-led county in particular, several lawsuits were filed over the county’s attempt to hand count ballots and its refusal to certify results. While Mayes’ opinion sends a clear message about when hand-counting is permissible, it is clear the Arizona Republicans are going to continue to instill doubt about the use of electronic voting machines.