By Howard Fischer
Capitol Media Services
Facing a near-certain lawsuit by Attorney General Kris Mayes and multiple unanswered questions, Mohave County supervisors on Monday rejected a bid to tally future elections with a hand count.
The 3-2 vote against the motion to proceed came despite the exhortations by state
Senate Majority Leader Sonny Borrelli who insisted that the maneuver would be legal.
And he told the supervisors if they were not sure, they could conduct what effectively would be a legal experiment: Do a hand count of the March presidential preference primary.
That got the support of Supervisor Hildy Angius.
"What's the harm of doing the presidential preference election which is one race?'' she asked. "And, if it's a matter of law, let's fight it out in court.''
Angius said she has heard multiple legal opinions on whether the procedure would be legal.
"And just because it comes from the attorney general, it doesn't mean that's the end-all,'' she said. "There's a higher court than that,'' Angius said, noting the case would end up being litigated.
Mayes, in a Sunday letter to board members, made it clear that would be the case, saying if they proceed her office "will pursue to the fullest extent of the law all possible remedies to ensure the sanctity of Arizona elections.''
And what that includes, the attorney general pointed out, is possible criminal violations, along with personal liability for board members who agree to use public funds "for this illegal purpose.''
Supervisor Ron Gould, the other vote to go ahead, was unmoved.
"My biggest concern here today is folks are losing faith in our elections,'' he said. "They don't think that their vote counts.''
And that, Gould said, makes it worthwhile.
"That's why I'm willing to risk getting thrown in jail,'' he said.
But it wasn't just Mayes telling the supervisors the plan was illegal.
Deputy County Attorney Ryan Esplin said state law requires the paper ballots used in Arizona to be counted by tabulators which have been tested. And he said the only authorization he could find for a hand count was one section which says that is permitted if it is "impractical'' to use the tabulators.
That led board Chairman Travis Lingenfelter to question what qualifies. Esplin said it has to be something more than a preference, perhaps a wind storm that knocked out power to run the tabulators.
"Our advice to you is to take the safe route and use the machines,'' he said.
Esplin also urged supervisors to ignore a resolution that Borrelli pushed through the Legislature earlier this year that said counties cannot use electronic equipment to cast, record and tabulate ballots unless it is manufactured and assembled in the United States. He said it has no force of law.
This is actually the second time the board has rejected a hand count.
The first plan was rejected in August by the same 3-2 margin amid various concerns, including an estimate by Allen Tempert, the county elections director, pegging the cost at $1.1 million. That drew some attention given estimates the county is facing an $18 million deficit.
Then there was the question of who would pay to defend the board for the inevitable lawsuit given that Esplin said his office would not do it.
What happened in the interim was that Borrelli arranged to have attorney Bryan Blehm send a letter to the board last week promising to represent the county "at no cost'' if they go ahead.
"This includes any and all appeals of any actions brought by any party,'' Blehm wrote. "Any litigation will be 100% private pay.''
That, however, did not comfort Supervisor Jean Bishop.
She pointed out this is the same lawyer who, along with his co-counsel working for Kari Lake to overturn the gubernatorial election, was slapped with a $2,000 fine by the Arizona Supreme Court after they told the justices that the record "indisputably'' reflects that there were at least 35,563 early ballots illegally injected into the system. Chief Justice Robert Brutinel said that was a lie.
Bishop also said Blehm is being investigated by the State Bar of Arizona over his conduct in handling election cases.
And, to boot, she said, he actually is a divorce attorney from Scottsdale.
Then there was the question of exactly who would be financing Blehm's legal efforts.
"Private individuals,'' Borrelli responded.
Bishop wanted to know if the money actually had been set aside and was in an escrow account or something similar.
"I can't disclose that,'' Borrelli said
"It's between the attorney and the donors,'' he said. "I actually don't know the names.''
And Esplin pointed out to board members that even if their legal fees are covered by outsiders, that still doesn't address who is going to pick up the tab if they are found personally liable.
Supervisor Buster Johnson questioned the whole premise that a hand count is needed to ensure accuracy.
"I don't know what we plan on proving by checking on an election that we all agreed with had no problems at all,'' he said.
"When we have a county attorney who's elected, we have an elections director who we hired, and we're not taking their advice and saying, 'Well, we'll ignore their advice' and go out to some attorney I've never heard of ... and a promise of money coming somewhere later, I think we're risking all the taxpayers of Mohave County,'' Johnson said. "I don't think it's a good move on our part.''
Mohave County has not been alone in toying with the idea of hand counts, mostly at the behest of those who continue to argue that the 2020 election was rigged and that Donald Trump really outpolled Joe Biden.
Cochise County supervisors had ordered a hand count of all early ballots in the 2022 election only to have that decision voided by Pima County Superior Court Judge Casey McGinley. He said the board had no such legal authority, a decision upheld by the state Court of Appeals.
Pinal County has rejected doing a hand count for the 2024 election. But board members continue to flirt with the concept despite the advice of County Attorney Ken Volkmer.
"You'll be sued,'' he told the board last week.
"You will lose,'' Volkmer continued. "And I believe the Attorney General's Office will bring criminal charges.''
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