Lawsuit Filed Challenging Arizona County’s Plan for a Hand Count Audit of Early Ballots

WASHINGTON, D.C. On Monday, Oct. 31, the Arizona Alliance of Retired Americans and a Democratic voter filed a lawsuit against multiple county officials and election administrators in Cochise County, Arizona challenging the county’s plan to perform a hand count audit of all early ballots (meaning a hand count of all ballots cast before Election Day conducted after a machine has electronically tabulated them). This lawsuit comes just a week after the Cochise County Board of Supervisors voted to conduct a hand count audit of ballots cast in person on Election Day and, after some back and forth, confirmed on Friday that it intended to move forward with an even more extensive plan to perform a full hand count audit of all early ballots (which, according to the lawsuit, “make up the vast majority of all ballots cast”). The complaint alleges that such an audit violates Arizona law and will also “sow confusion among voters and undermine the public’s confidence in Arizona’s elections.” The plaintiffs argue that, under existing Arizona law, a full hand count audit is only allowed if the results of a first-round, more limited hand count audit “differ[] by a statutorily defined margin from the electronic tabulation results.” The plaintiffs further contend that under no provision of Arizona law is the county permitted to conduct a full hand count audit unless it is preempted by an initial, smaller scale audit and supervised by the county’s elections director. The plaintiffs maintain that otherwise, Arizona law requires early ballots to be tabulated by electronic voting machine and only allows for hand count audits under specific circumstances. The plaintiffs request that the court issue a writ of mandamus (a court order compelling a party to take a specific action) to compel the “[d]efendants to conduct hand count audits of early ballots only as permitted by and in accordance with [Arizona law], declare that the Full Early Ballot Audit is unlawful, and prohibit Defendants from conducting the Full Early Ballot Audit.”

Despite numerous warnings from the Cochise County attorney as well as the Arizona secretary of state advising the defendants about the illegality of a full hand count audit of early ballots, the county moved forward with its broader plan to conduct a hand count of early ballots on Oct. 28. Notably, during an earlier Oct. 24 meeting, a member of the Cochise County Board of Supervisors stated, “‘I don’t feel like I want to back down so, I might go to jail but oh well”’ in response to the county attorney’s cautioning numerous times that a hand count would be illegal under state law. The board attempted to justify its actions by claiming that “[i]t is widely known that many voters lack confidence in the voting system.” A Republican member of the board also relied on an Oct. 28 informal opinion — issued by Arizona Attorney General Mark Brnovich (R) — that stated that the board could conduct a full hand count audit of “100% of early ballots cast” to provide further support for the county’s plan. Evidently, Cochise County’s plan to perform a hand count audit of all early ballots is emblematic of a growing pattern of Republican efforts to foment distrust and promulgate misinformation and disinformation about election procedures that are credibly proven to be safe and secure. Although hand counts are an important tool for recounts or confirming tabulator machine accuracy, using them as a primary counting method is both time consuming and subject to human error. 

Read the complaint here. 

Learn more about the case here.