The Arizona Republican Party is going to court to challenge a nearly decade-old provision in the secretary of state’s election procedures manual, which by statute has the force of law. Central to the complaint is that Maricopa County used the wrong method to determine which ballots to hand count for a post-election audit.

State law requires counties to perform a hand count of ballots from 2% of precincts after every election to compare the results to those from the tabulation machines that the counties use to tally ballots. But the legislature in 2011 passed a law permitting counties to switch from precinct-based voting to vote centers where voters could go to cast a ballot, regardless of where they lived. The election procedures manual remedied the conflict between the two laws by allowing counties to substitute voting centers instead.

The 2019 election procedures manual drafted by the office of Secretary of State Katie Hobbs, a Democrat, and approved by Gov. Doug Ducey and Attorney General Mark Brnovich, both Republicans, states, “In counties that utilize vote centers, each vote center is considered to be a precinct/polling location and the officer in charge of elections must conduct a hand count of regular ballots from at least 2% of the vote centers, or 2 vote centers, whichever is greater.” 

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The AZGOP’s lawsuit, which it filed on Thursday, alleges that the manual violates state law. The law expressly requires counties to hand count the ballots from at least 2% of precincts, wrote attorney Jack Wilenchik, who represents the state Republican Party.

“The legislature could have chosen to use the language ‘two percent of the polling places,’” Wilenchik wrote.

Wilenchik asked the court to order Maricopa County Recorder Adrian Fontes, whose office jointly oversaw the hand count with a director of election day voting appointed by the county Board of Supervisors, to conduct a hand count using precincts.

Maricopa County has already conducted its hand count of nearly 3,000 ballots cast at voting centers, along with nearly 5,200 early ballots. The election audit found a perfect match between the machine count and hand counts.

Maricopa County has no plans for full hand recount of ballots

State law mandates that counties conduct their hand counts in accordance with the election procedures manual, which the lawsuit notes. If there’s a conflict between statute and the manual, Wilenchik wrote, statute takes precedence.

AZGOP Chair Kelli Ward framed the issue in a similar way in a press release Thursday night.

“The question here is one of statutory construction, and whether the Secretary of State’s Elections Procedures Manual is able to supersede Arizona’s state law. Arizona voters deserve complete assurance that the law will be followed and that only legal ballots will be counted in the 2020 election,” Ward said.

But the lawsuit and the AZGOP don’t note that the legislature has given the election procedures manual the force of law, and has for decades. The manual provides guidance on how county elections officials should conduct elections and execute election-related statutes. Under state law, a violation of any rule adopted in the manual is a class two misdemeanor. 

Earlier on Thursday, the Attorney General’s Office addressed some of the very same issues raised in the lawsuit in a letter to House Speaker Rusty Bowers and Senate President Karen Fann.

Joe Kanefield, who serves as Brnovich’s chief deputy and chief of staff, said the manual is intended to fill gaps in Arizona’s election laws.

“The Legislature correctly recognized that it could not predict all of the variations between voting centers and precincts that counties might adopt. Instead, the Legislature directed the Secretary of State to do so through the Elections Procedures Manual,” wrote Kanfield, a former state elections director.

And Kanefield argued that there isn’t actually any conflict between the manual and the statute. State law is silent on how a county should conduct its hand-counted election audit if it doesn’t use precinct-based voting. The manual, he said, fills in that gap by allowing counties to use vote centers instead.

“In those counties that use voting centers, the practical effect of a hand count based only on precincts could result in no ballots being counted because no ballots would have been cast using tabulating machines at precincts. We do not believe the Legislature intended this result,” Kanefield said.

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Kanefield also noted that Hobbs isn’t the first secretary of state to permit hand counts based on vote centers instead of precincts.

The 2012 iteration of the manual, the first after the legislature passed the voting center law, first permitted counties to use the centers as the basis of their hand counts, Kanefield wrote. The 2014 version of the manual contained similar language. Both manuals were drafted under a Republican secretary of state, and approved by a Republican governor and attorney general. 

A draft version of the manual for 2018, prepared by Republican Secretary of State Michele Reagan’s office, also included language permitting counties to conduct the audits based on 2% of vote centers. Ducey withheld approval of the manual due to objections from county recorders. Reagan didn’t issue a new manual for the 2016 election cycle.