Arizona would be subject to new elections when voters say they were disenfranchised
By Howard Fischer
Capitol Media Services
PHOENIX -- Arizona state senators voted Tuesday to require new elections any time a certain number of voters claim they were "disenfranchised.''
SB 1695, given preliminary approval on a voice vote, would define that to include any time people signed affidavits they had to wait more than 90 minutes outside a polling place. But as crafted, it may not differentiate between those who couldn't vote and those who stayed and eventually did cast a ballot despite the wait time.
And it wouldn't take much.
As crafted by Sen. Jake Hoffman, R-Queen Creek, just 1,000 sworn affidavits from voters in Maricopa County saying they were disenfranchised would require a judge to order a new election there within 60 days. And it would take just 250 affidavits from smaller counties to rerun their elections.
What also would trigger a new vote would be if any election official violated any section of the state Election Code or provisions of the Elections Procedures Manual. But the measure does not spell out which violations would count or whether even a minor infraction would toss out the results.
Hoffman said it's not just what happened in 2022 in Maricopa County with problems with on-site tabulators being unable to read the ballots printed there. The result was long lines, complicated by the fact that officials from the Arizona Republican Party told voters not to return their early ballots in the mail but bring them to polling places, extending the wait times.
But Hoffman said it's about more than what happened in 2022.
"We've seen over the last six, eight, 10 cycles a progressive decline in the quality of elections being held in Maricopa County,'' he said. But he said that's just an example.
"There are issues that happen in Pima County, there are issues that have happened in Pinal County now for multiple elections in a row,'' Hoffman said. "And it is unfair to the people of this state that county elected officials, county elections officials, can violate the law, repeatedly, and not be held to account.''
The move to establish procedures in law to overturn future elections comes as an organization that helped finance the "audit'' of the 2020 election amid charges it had been stolen now is trying to help Kari Lake overturn the 2022 gubernatorial vote.
In new filings, Tucson attorney David Hardy is telling the Arizona Supreme Court that the outcome of the election would have been different if lower courts had not agreed to allow "numerous violations of the statutes and procedures'' that "have essentially immunized the election from meaningful review.''
He even cited a "late exit poll'' conducted by Rasmussen Reports, which has supported conservative causes, that claims that a survey of people who said they voted in November 2022 shows Lake outpolled Hobbs by 8 percentage points.
"Allowing such an election to stand unreviewed would destroy the public's confidence in this election and give license to those conducting future elections to manipulate the rules at will,'' Hardy said.
He represents a coalition of groups including America's Future, headed by Michael Flynn, a former national security adviser to President Trump. Flynn was found guilty of lying to the FBI about his contacts with the Russian ambassador but was pardoned by Trump in late 2020.
Flynn also said in December 2020 that Trump should impose martial law to overturn the results of the 2020 race that was won by Joe Biden and even deploy the military to "rerun an election'' in battleground states -- presumably including Arizona -- that Trump lost.
America's Future also donated more than $976,000 in 2021 to Cyber Ninjas. That is the firm with no prior election auditing experience hired by then-Senate President Karen Fann to recount the ballots in the 2020 presidential and U.S. Senate races.
Others in the coalition seeking to overturn the election include Public Advocate of the United States which advocates for religious conservative policies and has fought against gay rights; the Conservative Legal Defense and Education Fund which opposed the confirmation of Ketanji Brown Jackson to the U.S. Supreme Court; and the U.S. Constitutional Rights Legal Defense Fund.
Hoffman, in pursuing SB 1695, makes some of the claims that candidates cannot get judges to accept their legal arguments and overturn elections.
"Apparently today the courts, the stewards of the law, no longer take the law seriously,'' he said. And that, said Hoffman, is why legislators need to intervene and set up an automatic procedure to rerun future elections.
The Queen Creek lawmakers was particularly incensed about the wait times which he said exceeded two hours at some polling places. And he said that's even accepting the figures provided by Maricopa County which he said take into account the time from signing in until being able to cast a ballot and not the time outside.
That mirrors Lake's legal claims that the long lines resulted in voter suppression as some people got discouraged and walked away. And she contends that the majority of those who showed up on Election Day would have voted for her and not Katie Hobbs.
Hoffman echoed that claim of suppression, but with a different spin.
"The stuff that happened in Maricopa, honest to God, I could find you examples from the Jim Crow era where in the South they did exactly what was done to day-of voters,'' he said. "They did that to Black people in the South.''
Less clear is exactly what it would take to meet that threshold of allegedly disenfranchised voters to trigger a new election.
As crafted, within five days after the election, a voter would have to submit an affidavit saying he or she waited more than 90 minutes outside "before I could complete and submit my ballot.'' That verbiage suggests that affidavits even from people who did get to vote would be counted.
If there are a sufficient number of affidavits -- 1,000 in Maricopa County and 250 in any other -- a judge would order a "special master,'' someone certified in election procedures from another county, to go over the affidavits to determine their veracity.
At that point the court would declare it was a "failed election,'' bar the supervisors from certifying the vote, and direct them to order a new vote within 60 days, to be run by that special master.
The same result would occur on a finding of a violation of any election law or the Election Procedures Manual, with nothing in the measure spelling out how serious -- or how technical -- that oversight might be.
Ditto on failure to maintain "chain of custody'' of ballots, which is one of the allegations Lake is making in arguing that illegal votes were inserted into the system that far exceeded her 17,117-vote loss to Hobbs.
"It is our job to ensure that there's confidence, both in the process and in the outcomes,'' Hoffman said. He said that doesn't mean he -- or anyone else -- will be pleased with the outcome.
"But if we are disenfranchising voters, provably disenfranchising voters, that should not be allowed to stand,'' Hoffman said.
Sen. Juan Mendez, D-Tempe, said the legislation is flawed.
"This proposal would allow an arbitrary number of subjective claims, which are most likely misunderstandings of how elections work, to overthrow an election,'' he said. "This will only serve to de-legitimize elections.''
Questions about what constitutes disenfranchisement aside, Sen. Priya Sundareshan, D-Tucson, said what Hoffman proposes has logistical problems.
She noted state law sets a deadline for a formal "canvass'' of the vote. Sundareshan questioned what would happen if the votes from one or more counties was missing.
That nearly happened last year after Cochise County supervisors balked at certifying the vote there. That led to claims by Hobbs that she would need to proceed with the statewide canvass without the Cochise votes, effectively disenfranchising everyone who cast a ballot in the county.
None of that became necessary after the board, facing a court order, went ahead with the certification.
The measure awaits a final Senate vote before going to the House. If it is approved there it would have to be signed by Hobbs before it could take effect.