As Mohave County pursues a plan to hand

A volunteer observer (right, dressed in orange) watches as Maricopa County ballots from the 2020 general election are examined and recounted by contractors hired by the Arizona senate at the Veterans Memorial Coliseum in Phoenix, Ariz. on April 27, 2021. Photo by Rob Schumacher | Arizona Republic/pool

A day after supervisors in a northwestern Arizona county voted to request a plan to hand-count ballots in the 2024 presidential election, Arizona Secretary of State Adrian Fontes sent a letter to Mohave County supervisors on Tuesday telling them he is concerned that moving forward would break state and federal laws, potentially be insecure, and would lead to inaccurate results.

"Hand counting ballots is incredibly prone to human error, which results in a time-intensive process to arrive at correct, final results," Fontes, a Democrat, wrote. "However, even assuming correct and final results, state law does not allow county boards … to unilaterally substitute a hand count for certified and tested electronic tabulation equipment."

The vote Monday by Republican supervisors was nearly unanimous, with one supervisor, Jean Bishop, voting no. It ordered the county's elections director to come up with a plan to count all votes on ballots cast in the upcoming presidential election by hand.

In a statement to Votebeat shortly after he sent the letter to the supervisors, Fontes wrote that he's concerned "any plan to initiate a full hand count of ballots for a future election would put [county election] officials in serious legal jeopardy, including possible criminal liability, for violations of state law."

"I urge any county official 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," he wrote.

In response, Supervisors Chairman Travis Lingenfelter wrote to Fontes that it was an "interesting letter and duly noted."

"Thank you for your concern for Mohave County's well-being," he wrote. "I’d like to share that Mohave County has its own County Attorney's Office, it's own professional Elections Director and staff, and working closely with them our Board sees no harm done in fully assessing, evaluating, and understanding the total estimated expense and time that such an endeavor as was discussed yesterday would involve."

Fontes’ office learned of the supervisors’ vote after Votebeat reached out for comment on Monday, according to a spokesperson.

The Mohave supervisors are just the latest in Arizona to consider hand-counting ballots as some GOP leaders and residents continue to call for the ban of ballot tabulation machines across the state, following false claims of vote switching in 2020. Pinal County's election director is currently conducting a trial hand-count of test ballots at the direction of the county supervisors. Cochise County supervisors have said they remain interested in the idea despite a court blocking their hand-count audit plan last November.

Mohave supervisors’ vote followed impassioned speeches from two Republican state senators, Sonny Borrelli, who represents the county, and Wendy Rogers, who represents another part of northern Arizona. The senators pressured the supervisors to hand-count ballots, telling them that the rest of the state is counting on them to lead.

"I don't know if you ladies and gentlemen realize, but in this room right now is a real historic opportunity," Rogers said.

Borrelli, the Senate's majority leader, sent a letter last month to supervisors in all of the state's 15 counties falsely stating that a non-binding Senate resolution the Legislature passed earlier this year prevents counties from using their tabulation machines in the 2024 election. He sent it on his own, and a Senate Republican spokesperson said the Senate leadership team disagreed with it.

Citing ‘plenary powers,’ GOP leader claims a non-binding resolution bans Arizona election machines

Borrelli downplayed that letter on Monday, saying "it seemed pretty heavy-handed, but that wasn't the intent," and instead asserting that the counties didn't need a resolution or law to allow them to hand-count, because state law doesn't prohibit it.

"The media and other supervisors in other counties want to lead people on to believe that myth," he said. "It's not a mandate, you don't have to use the equipment."

Fontes’ letter says otherwise. He cites case law that explains that county supervisors have only those powers "expressly conferred by statute," and cannot act outside of those powers. 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.

In addition to the legal concerns, Fontes wrote that hand counting would not have the same strict processes and procedures machine counting does, that ensures "integrity, accuracy and security."

"This lack of accountability could result in significant human error," he wrote.

Borrelli told the supervisors he believed they would be sued if they move forward.

"If they want to sue, then bring it on, because I have an army behind me that is ready to fight," he said.

Mohave's proposed plan would differ from the Cochise County plan that was blocked by a judge in November. Cochise's plan was to still tabulate ballots by machine for the initial count, but then to hand-count all ballots as part of the statutorily-required hand-count audit that allows counties to only count a small, random sampling of early and Election Day ballots.

Supervisor Buster Johnson told Votebeat that Fontes’ letter wasn't surprising. He's not in support of the hand-count, he said, which is why he wanted to specify the vote wasn't to approve the hand count but to approve studying what it would take.

"Hopefully the board will come to the correct decision once they move ahead," he said.

Bishop, the only supervisor to vote no, told Votebeat that she thinks it's a waste of time and resources to make the plan.

"I think this is all just political baloney."

The Mohave supervisors voted to hand-count ballots even after their own elections director explained to them, in detail, why it wouldn't work.

Allen Tempert, who has been the county's elections director for more than two decades, told the supervisors hand counting is extremely difficult to do accurately, would take weeks, and would be extraordinarily costly. Election experts and numerous studies have also found hand-counting ballots to be far less accurate and less efficient.

Tempert told supervisors he can't even get enough poll workers to work the election, let alone recruit the several bipartisan teams the hand count would require.

"My biggest concern, and the biggest concern of Sen. Borrelli, is accuracy, is doing it correctly," he said. Unlike Borrelli, however, he believes machines are more accurate. "Maybe because I have had such good elections. Maybe because I have gone all these years and I’ve never been off a penny on any of the testing I’ve ever done."

The supervisors had just spent hours discussing how the county is facing a multi-million dollar budget shortfall. Still, they didn't seem deterred by the price tag.

"I think it's worth investigating," said Supervisor Hildy Angius, who has previously said balancing the county's budget is among her top priorities.

Other attempts to hand-count ballots across the country since 2020 have taken weeks or months, have required anywhere from dozens to hundreds of workers, and have shown just how difficult it is to get accurate results. The state Senate-ordered partisan review of Maricopa County's 2.1 million 2020 election ballots, for example, took Cyber Ninjas and its contractors more than three months, millions of dollars, and hundreds of volunteers, and ballots had to be recounted numerous times to try to get accurate results. In Nevada last year, workers counting by hand in Nye County took longer than expected, at a pace of about 2,000 ballots a day.

The Mohave supervisors represent one of the most Republican-heavy counties in the state. In 2020, a majority of the board initially refused to certify their election results. In 2022, a few supervisors indicated they did not want to certify, but the county attorney told them state law required supervisors to certify the results as presented to them.

Prior to the item Tuesday, the supervisors received legal advice from the county attorney's office in executive session, which is closed to the public, according to their meeting agenda. They did not consult the attorney's office on the topic during the public meeting later.

As in other counties that have proposed hand-counting ballots, the Mohave supervisors on Monday praised their elections director, saying that the problem wasn't with their election, but with Maricopa and Pima counties’. Recounts in those counties found that each had accurately counted votes, and an independent review of Maricopa County's ballot printing problems found they didn't ultimately affect the accuracy of the election.

Tempert told the supervisors that while living in Pennsylvania, before he moved to Arizona, he attempted to lead a team conducting a hand count of one race on 65,000 ballots. It took two months, he said. In Mohave County's November election, there were about 83,000 ballots and an average of 21 contests on them.

After finishing the initial count, a statewide recount would mean he would have to again assemble a bipartisan team to do it all over again, he said.

After Tempert spoke, Rogers told supervisors, to applause in the boardroom, that "the counties won't start doing it until one heroic county starts doing it, and that's you." She then evoked her and Borrelli's military service.

"For someone to say it can't be done, I don't accept that," she said, "250 years of blood and treasure and the soldiers, sailors, airmen, marine and coast guardsman, they never said they couldn't do it. They did it. It's about the mission."

Angius said she wants to see a report showing how much it would cost.

"At least we could present it to the public to say, if this is what you want, this is what it is going to take," she said.

by Jen Fifield/Votebeat, Arizona Mirror June 7, 2023

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Jen Fifield is a reporter for Votebeat. She previously covered Maricopa County and Phoenix for The Arizona Republic, including the high-profile review of the county's 2020 election. Prior to that, she covered politics and government for local newspapers in Maryland and state policy for Stateline, a news service run by The Pew Charitable Trusts. She has won several regional press awards in Arizona and Maryland for her investigative, feature, politics and education reporting. Jen is a Phoenix native and graduated from Arizona State University's Cronkite School.