Facebook Twitter

Cochise County supervisors sue elections director to get access to ballots for hand count

The Republican supervisors are asking a judge to compel the elections director to expand the hand count audit of ballots in the midterm election.

VotebeatAZ_20221115_Cochise_GettyImages_001.JPG

Cochise County supervisors are suing the county’s elections director for not expanding the hand count audit of the county’s midterm election.

Brian van der Brug / Los Angeles Times via Getty Images

Update, Nov. 18: Cochise County supervisors withdrew the lawsuit against the county’s election director, saying that they did not want to interfere with an expected statewide recount. That ends the effort to expand the county’s hand count audit, for now.

Two Republican supervisors in Cochise County are suing the county’s elections director, asking a judge to order her to give them access to midterm election ballots so the county recorder can conduct an expanded hand count audit.

It’s the latest development in a months-long saga in which Supervisors Tom Crosby and Peggy Judd, along with Republican County Recorder David Stevens, have been trying to find a way to hand count ballots cast in the election, saying that the community does not trust the county’s vote-counting machines. A county judge ruled last week that it was unlawful for the county to expand the statutorily required hand count audit, which typically examines a sample of ballots, to examine 100% of ballots. The Arizona Supreme Court then declined to hear an appeal filed by the supervisors.

In their complaint against county elections director Lisa Marra, filed Monday in Cochise County Superior Court, Crosby and Judd, the two Republicans on the three-member board, told the court that while the order prevented the county from completing a 100% hand count, it did not prevent them from expanding the hand count to nearly all ballots, which is what they intend to do. 

“Marra has refused to comply with the Board’s lawful command to conduct an expanded hand count,” the complaint states.

But the complaint also said the county attorney told Marra it would be illegal to follow the supervisors’ orders on the hand count, which means Marra “cannot reasonably be expected to comply” unless the court compels her to do so.

About 47,000 Cochise County voters cast ballots in this election, and about 90% have been counted as of Tuesday morning, according to a county estimate. If the expanded hand count moves forward, it would need to happen before the county’s Nov. 28 deadline to certify election results. The supervisors have a meeting scheduled for Friday to certify the results.

County taxpayers are on the hook for at least some of the legal costs related to the hand count effort. The county attorney’s office is covering Marra’s outside legal counsel, said Deputy County Administrator Sharon Gilman.

It’s unclear at this point whether the supervisors and recorder will pay their outside counsel with county funds. The supervisors discussed how they would pay their attorney at a public meeting Tuesday, where many residents told them that it shouldn’t be on taxpayers to cover the costs.

The supervisors hired Bryan Blehm in the initial case defending the full hand count and in the lawsuit against Marra. Blehm previously represented Cyber Ninjas, the main contractor hired by Arizona Senate Republicans to review Maricopa County’s 2020 election. Stevens also hired an attorney that had defended Cyber Ninjas, but Gilman said she did not know how he was paying for it.

“This action item,” Hereford resident Jill Hamilton said at Tuesday’s meeting, “is asking taxpayers to pony up and pay your Cyber Ninja lawyer for the decision you made to continue with your action of going against Arizona law and the injunctions of three judicial entities. Hmm. If you can’t dazzle them with brilliance, then baffle them with bullshit.”

The supervisors decided to hold off on voting on how to pay until Nov. 29, although they noted that Blehm’s $10,000 retainer is already past due.The lawsuit against Marra says that the supervisors filed it in their official capacity, but the supervisors did not yet vote to file it, and a meeting with that matter on the agenda has not been scheduled. Crosby and Judd say in the complaint it’s their intent to vote on this soon. It’s unclear how they filed the lawsuit without first discussing the matter, which would violate state open meeting laws. A meeting that had been scheduled for 1 p.m. Tuesday to discuss the expanded hand count was canceled.

Cochise County is one of several Republican-controlled counties in the U.S. to attempt a hand count of ballots after unproven conspiracy theories in 2020 claimed that vote-counting machines were not secure or accurate and had been programmed to fix the vote for Joe Biden.

Why are the supervisors suing the elections director?

Under state law, all Arizona counties must conduct a hand count audit of machine-tabulated results if the county’s political parties participate and provide workers. The political parties supervise the hand count, which examines a small portion of ballots and, in non-presidential years, four contests on each ballot.

This audit is typically set up by the counties’ elections directors, and under state law, ballots must remain in the elections directors’ custody until after the election is certified. 

Marra had made clear to the supervisors and the court that she would only conduct the statutorily-required hand count. Knowing this, the supervisors had delegated authority to conduct the expanded hand count to Stevens, the recorder, who has supported their effort. 

Even after the judge ruled last week that their action to pursue a 100% hand count was illegal, and before the court could even consider the appeal the supervisors filed last week, Stevens proceeded with preliminary steps for an expanded hand count. 

He “randomly selected sixteen out of seventeen vote centers to conduct an expanded hand count of election day ballots only,” according to the lawsuit. When the Arizona Democratic Party found out about this effort, its lawyers sent Stevens a letter asserting this was in violation of the court order.

Around the same time, Judd set up a special meeting for Tuesday for the board to consider expanding the hand count up to “99.9%” of ballots.

On Thursday, County Attorney Brian McIntyre sent a letter to a lawyer representing Marra on the matter, telling her that it would be illegal to proceed with the expanded hand count and Marra could be charged with numerous felonies if she cooperated with the supervisors, including interfering with an election, interfering with election equipment, and violating a court order.

“I have alerted the appropriate authorities to the potential violations based upon the statements of two elected officials connected to this,” McIntyre said. “It is my sincere hope that no action will be required of them and that the rule of law will prevail.”

The county attorney’s office had warned the supervisors from the start that moving forward with an expanded hand count would be illegal, and therefore said it would be a conflict to represent the supervisors if they moved forward.

While the supervisors initially said they would pay attorneys privately, the bill for the retainer is outstanding. Judd said it was still her intention to raise private funds. “We are working on a way to reimburse this to the county,” she said at the meeting.

This weekend, Marra proceeded with the typical state-prescribed audit. She told Votebeat this weekend that she had conducted the statutorily-required hand count audit of ballots, and it had found 100% accuracy in the election results. 

The lawsuit claims that Marra had refused to comply with the supervisors’ orders by not conducting an expanded hand count, not permitting the recorder and his personnel to access the counting center, and not turning over the ballots to the recorder.

But the complaint does not say if or when the board had reached out to Marra after the judge’s ruling to ask her to expand the hand count, or whether Stevens tried to get access to the ballots. 

Asked whether Stevens tried to obtain the ballots, Marra told Votebeat he did not. 

“Didn’t even ask,” she said.

Contact Votebeat reporter Jen Fifield at jfifield@votebeat.org.

The Latest
Two counties have postponed until the last minute, but election lawyers say the courts will force the certification by the deadline no matter what.
Maricopa County is researching these provisional ballots from voters who left an original location and tried to vote elsewhere.
The fullest explanation the county has made so far about what went wrong.
When the machine wouldn’t take the ballot, voters were told to place their ballots into a slot on a secure box, which the county has labeled “door 3.”
Republicans sued to keep vote centers open late, but a judge said there was no evidence voters were disenfranchised.