Attorney General Kris Mayes wants a judge to toss a bid by a Mohave County Supervisor seeking a court order granting him immunity if he votes to scrap machine counting of ballots.
In court filings, Emma Mark, one of the lawyers in Mayes’ office, told Maricopa County Superior Court Judge Brad Astrowsky, what Supervisor Ron Gould really wants is a judicial declaration that he can vote to require that ballots be counted by hand. As part of that, the supervisor claims he needs an order blocking Mayes from subjecting him to “threats and intimidation” for pushing for hand counts of elections.
Gould voted last year to require a hand count of the 2024 election. But he was on the losing end of a 3-2 vote by the board to scrap the idea after members got a letter from Mayes.
“We hope you will choose not to violate the law and thus that it will not be necessary to consider whether criminal prosecution is warranted for conducting an illegal hand count,” the attorney general wrote at the time.
But Mark told the judge that it is not the business of courts to give people advice, ahead of time, as to what conduct will or will not land them in legal hot water.
Whether the judge agrees to toss the case out of hand or take a closer look could have implications beyond Gould and beyond Mohave County.
In filing suit, Gould wants Astrowsky to rule that machine tabulation is optional, that the supervisors can make that choice and that he “should not be subjected to threats and intimidation by the attorney general for voting to have hand counting be the primary initial method of vote tabulation.”
For Astrowsky to determine whether Mayes is off-base, he likely would have to first decide whether hand counts are legal. And such a ruling could tell county supervisors throughout the state whether they are free to scrap the voting machines and go back to the way it was before such tallying equipment ever existed.
But Mark, on behalf of Mayes, hopes to get the issue from ever getting that far. She told the judge there’s nothing for him to decide — at least not yet.
Mark told Astrowsky no one has made a specific threat against Gould to initiate criminal charges. Instead, she described the letter to the supervisors that Gould cites as a threat to be a simple statement: If the board were to vote to conduct a hand count, that “might result” in criminal penalties. And she pointed out that was the same advice the board got from Ryan Esplin, a deputy county attorney.
The bottom line, she said, is there’s no reason, at least at this point, for Astrowsky to preclude Mayes from doing anything.
“Plaintiff has not articulated a concrete plan to violate the law,” Mark said.
She acknowledged that Gould has voted, twice, to hand count ballots. And he said he “will continue to so vote until the vote passes with most of the board, for so long as he remains a member of the board.”
But, for the moment, what Gould said he intends to do is “purely hypothetical,” Mark said.
“The matter is not set for a board vote, no measure has been placed on the board’s agenda, and even if it were, the outcome of that vote is entirely unknown,” she wrote. “At most … Gould has expressed only a general intent to violate a statute at some unknown date in the future.”
At the heart of the dispute is the argument by Dennis Wilenchik, Gould’s attorney, that the supervisors are free to move to a hand count, and to do so free from threats from Mayes.
Consider, he said, a section of the Election Code which says ballots or votes “may be cast, recorded and counted by voting or marking devices and vote tabulating devices.” The operative word there, said Wilenchik, is “may,” meaning “the use of vote tabulating devices is optional, not mandatory, under the statutory scheme.”
Mark disagreed.
“Title 16 (the state Election Code) does not permit a county board of supervisors to authorize counting ballots by hand instead of using electronic tabulating machines,” she told Astrowsky.
Mark does acknowledge that there is that provision in the code that some ballots will be counted by methods other than tabulating equipment.
For example, she said, the law permits a hand count “if for any reason it becomes impracticable to count all or part of the ballots with tabulating equipment.”
“But simply because the statutory scheme recognizes that situations will arise which may require ballots to be hand counted, it does not open the floodgates for counties to ignore the procedure detailing when a hand count is authorized and to conduct a hand count in the first instance,” Mark said.
Beyond what the Attorney General’s Office says is the clear law on this matter, Mark told Astrowsky there’s another reason for him to throw out Gould’s case. And it comes back to the fact that he essentially is asking for the judge to issue a declaratory judgment that a future vote won’t get him into legal trouble.
“If courts were to accept plaintiff’s invitation to begin using the Declaratory Judgment Act to determine whether particular conduct fits within the scope of a valid statute, it would create a flood of potential litigation,” she said. “Litigants might seek to use the Declaratory Judgment Act to determine the outer bounds of criminal statutes in a variety of contexts.”
Arizona courts have rejected various lawsuits contending that the tabulating equipment produced incorrect results in the 2022 election. And the Brennan Center for Justice has concluded that hand counting is more likely to produce errors.
There also are checks built into the system, like requirements for machines to be tested before and after elections. Arizona law also requires a random hand count audit where a certain number of races from a certain number of precincts are tabulated by hand to see if the totals match what the machines have counted.
Gould said, however, there’s a good reason for him to try to get a judge to rule that a hand count is legal and that he can’t be threatened with prosecution for voting to do that.
“My concern is that my constituents are losing faith in the election process,” he told Capitol Media Services when he filed the lawsuit in January. And Gould brushed aside a question of whether that loss of faith is happening simply because candidates like Donald Trump and Kari Lake are sowing those seeds simply because they lost their elections.
“It doesn’t matter why they are losing faith in the election,” he said. “My concern is that they’ll quit voting if they lose faith.”
Gould’s lawsuit has gotten the attention of Senate President Warren Petersen and House Speaker Ben Toma.
In a separate legal filing, the two Republicans say they are not taking a legal position on whether the law permits county supervisors to authorize a hand count.
But attorney Thomas Basile, representing the pair, told Astrowsky that any ordinance ordering a hand count that a county would adopt is purely a legislative function. And that, he said, means Gould is immune from prosecution.
The judge has not said when he will rule.
