By Howard Fischer
Capitol Media Services
PHOENIX -- A Mohave County supervisor wants a judge to bar Attorney General Kris Mayes from subjecting him to "threats and intimidation'' for pushing for a hand count of elections.
In a new court filing, Ron Gould contends nothing in state law precludes a county from deciding to tally ballots by hand. More to the point, he claims that a majority of the five-member board would vote for such a procedure were it not for Mayes, in a November letter to the supervisors warning them that going down that path "could result in various felonies and misdemeanor penalties.
"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.
But Dennis Wilenchik, who is representing Gould, said Mayes is misreading the law.
And he said the case that the attorney general is relying on to back her up claims concluded only that counties cannot do full hand-count audits, meaning a separate check of the accuracy of all the ballots to see of the results match what is reported by the vote-tallying equipment. What was not part of the that ruling, said Wilenchik, is what at least some Mohave supervisors want to do: scrap the voting equipment entirely in favor of hand counting the ballots.
So Gould wants a ruling from a Maricopa County superior court judge 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.''
A spokesman for Mayes declined to comment.
The outcome of the litigation will have implications beyond Mohave County. A final ruling would 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.
Wilenchik said he believes that is what Arizona law says.
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.''
And he said while the federal Help America Vote Act prohibits the use of certain tabulating devices for federal elections -- for example, those that cannot produce a permanent paper record -- it does not prohibit hand counting.
The fight in Mohave County dates back to last summer when the board voted to consider a hand count for the 2024 races. That was scrapped by a 3-2 vote against the plan in August amid various practical concerns.
But three months later board Chair Travis Lingenfelter, who had been one of the foes, put the issue back on the agenda. That gave Senate Majority Leader Sonny Borrelli, R-Lake Havasu City, a chance to argue to the board a hand count would be legal.
It was also at that same meeting, however, that Mayes' letter was read to the board.
Gould contends that, had it not been for Mayes' letter, Lingenfelter would have voted for the hand count, providing the necessary third vote given his earlier vote against it.
Lingenfelter did not immediately respond to a request for comment. But Gould said it's only logical.
"It seems rather odd that he would bring it back up if he had not changed his mind,'' he said.
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.
"My concern is that my constituents are losing faith in the election process,'' he said. And Gould brushed aside a question of whether that 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.''
And Gould said he shares some of their concerns.
He pointed out that state law requires each county board of supervisors to certify the results of each election.
"I cannot tell whether we had a clean election or not because they won't give me information that I need to check,'' Gould said, specifically citing his demand for the "cast vote record.''
In essence, that is a digital representation of each voter's choices, with any identification of the voter stripped away. While mainly used as an auditing tool, it can provide some information to political junkies, like whether a person who voted for Candidate X in one race voted in all the other races, the kind of information that could not be ascertained by simply reviewing the official results.
"They won't give me the information to do my job,'' said Gould.
Yet he said he gets threatened with prosecution for refusing to rubber stamp the results.
It's not just Mayes. Gould pointed out that there were threats of litigation after the 2022 election from Kori Lorick, the state elections director under Secretary of State Katie Hobbs, to bring charges against any county that did not certify the results on time.
"I'm getting tired of people telling me they're going to throw me in jail for doing my job,'' Gould said.
All that, he said, could be resolved if a judge rules that counting ballots by hand is legally permissible.
No date has been set for a hearing.
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