Bill would permit outside parties to pay for election recounts

Anyone who thinks a recount of an election might change the outcome would have the opportunity to put their money where their mouth is under a new bill filed for the 2021 legislative session.

Sen. J.D. Mesnard, R-Chandler, is reviving a proposal he sponsored two years ago that would permit outside parties to pay for recounts. State law currently only permits recounts under extremely narrow circumstances if races are particularly close. For a statewide contest, recounts are only triggered if the margin of victory is 200 votes or one tenth of one percent of the total votes for both candidates.

Senate Bill 1010 would allow anyone to request a recount in a race, conducted either through the tabulation machines that election officials use to count ballots or a much more intensive hand count, regardless of the margin of victory. But whoever makes the request would have to foot the bill. The requester would have to post a bond for whatever amount a superior court judge deems sufficient to cover the costs.

“It can be frustrating, at the very least, if you believe an outcome should’ve been different — whether you’re right or wrong, or have reason to believe it or not — to not be able to go in and verify that, and even be able to go in and pay for the cost of it. There’s no mechanism for doing that now,” Mesnard said.

The proposal comes amid baseless allegations and conspiracy theories among supporters of President Donald Trump that Joe Biden’s win in the 2020 presidential election was the result of fraud, particularly Arizona and several other swing states that secured the former vice president’s victory.

Mesnard said the recent controversy about the presidential election is only part of the reason for his bill, a version of which was first introduced in 2019. After several Democratic candidates who trailed on election night in 2018 pulled into the lead days later, some Republicans alleged fraud, despite a total lack of evidence. The 2019 legislation never received a hearing in the Senate Judiciary Committee.

Voter confidence is going down, Mesnard said, and if permitting campaigns and others to pay for recounts helps alleviate that, then it’s progress. 

“I am extremely alarmed by the voter confidence issue, whether it’s merited or not,” Mesnard said. “Whether you agree with it or not, we cannot be dismissive. We should not be dismissive. That poses a greater danger to our democratic electoral process.”

Mesnard noted that many other states allow outside parties to pay for recounts. According to the National Conference of State Legislatures, Arizona is one of only nine states that do not allow people to request recounts under any circumstances. Candidates can request recounts in 39 states, with the conditions under which they can do so varying state by state.

Last month, Trump’s campaign spent $3 million on recounts in two populous counties in Wisconsin, one of the six pivotal swing states Biden won. In 2016, Green Party presidential candidate Jill Stein sought recounts in Michigan, Pennsylvania and Wisconsin, only the last of which was actually conducted. 

Biden won Arizona by 10,457 votes, about 7,000 more than the threshold for an automatic recount. With many Republicans still fuming over Biden’s victory, and many lawmakers still crying foul over the election, Mesnard expects to have an easier time getting his bill heard in committee.

“Since we addressed cost, I’m not sure what the argument is going to be here,” Mesnard said.

Nonetheless, Mesnard may still face opposition.

Maricopa County Recorder Adrian Fontes, a Democrat who will leave office next month after losing his re-election bid, said he saw no need to allow people to request recounts, and saw it as nothing more than sour grapes over Trump’s loss.

“It’s a dumb idea. And it’s based in this fantasy world that some people refuse to exit from,” he said. “They can argue all they want, but the election is over.”

Fontes, who will join the staff of Pima County’s recorder-elect, Gabriella Cázares-Kelly, next month, said there are still problems with the proposal, even if taxpayers don’t have to eat the cost of a recount. If there were a hand count of a countywide race in Maricopa, where nearly 2.1 million votes were cast in the 2020 general election, people would still be counting now, he said. And he worried that outside organizations could abuse the process and request numerous recounts, especially with no threshold in the law.

Stephen Richer, the Republican who defeated Fontes last month, said Mesnard and anyone supporting the bill should keep in mind the time and personnel it would take to conduct such recounts. However, Richer said he didn’t have strong feelings about the proposal and was open to the possibility.

“It’s something I’d look into. But if it’s a reasonable step to providing confidence and it doesn’t cost the taxpayer anything, then that, prima facie, seems like it could be positive,” he said. “I think you’ll find that very few people will avail themselves of that.”

Mesnard’s bill isn’t an exact copy of his 2019 proposal. There’s a new major provision that would address another controversy from the recent general election.

State law requires every county to conduct a limited hand count of ballots from at least 2% of all precincts, along with 1% of all early ballots, though those post-election audits are contingent on the participation of political parties. In Maricopa County, the hand county matched perfectly with the results from the tabulation machines used to count votes.

But in light of the allegations and concerns surrounding the election, Attorney General Mark Brnovich urged Maricopa County to expand the hand count to 5% of precincts. And the Arizona Republican Party sued Maricopa County, alleging that it was illegal for the county, which no longer uses precinct-based voting, to use vote centers instead of precincts as the basis for its audit. A Superior Court judge rejected the GOP’s case.

Mesnard’s bill would require counties that conduct hand counts to audit at least 5% of precincts, and specifies that voting centers — which allow any voter in the county to cast a ballot regardless of where he or she lives instead of requiring them to vote only at a single precinct — can be used instead. And Arizona’s attorney general or secretary of state, as well as Legislative Council, a joint committee composed of members from the House of Representatives and Senate, would be able to request that counties expand the hand counts beyond that, even to 100% of in-person ballots.

Richer said the proposal is worth exploring, but he had concerns. He noted that counties conduct their audits immediately after Election Day, when election officials are still busy counting early ballots that weren’t processed before Election Day. Increasing the number of ballots that election officials must audit could delay the final results, which already take more than a week in most general elections.

“It’s like anything else. If you have finite resources, if you allocate more resources into the hand count audit, that means you’re taking resources away from something else,” Richer said.