Cochise County supervisors sue elections director to get access to ballots for hand count

By: - November 15, 2022 1:08 pm

Votes are counted by staff at the Maricopa County Elections Department office on Nov. 5, 2020, in Phoenix. Photo by Courtney Pedroza | Getty Images

Two Republican supervisors in Cochise County are suing the county’s elections director, asking a judge to order her to give access to midterm election ballots so the county recorder can conduct an expanded hand count audit.

It’s the latest development in a months-long saga in which Supervisors Tom Crosby and Peggy Judd, along with Republican County Recorder David Stevens, have been trying to find a way to hand count ballots cast in the election, saying that the community does not trust the county’s vote-counting machines. A county judge ruled last week that it was unlawful for the county to expand the statutorily required hand count audit, which typically examines a sample of ballots, to examine 100% of ballots. The Arizona Supreme Court then declined to hear an appeal filed by the supervisors.

This article was originally published by Votebeat, a nonprofit news organization covering local election administration and voting access.

In their complaint, filed Monday in Cochise County Superior Court, Crosby and Judd, the two Republicans on the three-member board, told the court that while the order prevented the county from completing a 100% hand count, it did not prevent them from expanding the hand count to nearly all ballots, which is what they intend to do.

“(Lisa) Marra has refused to comply with the Board’s lawful command to conduct an expanded hand count,” the complaint states.

But the complaint also said the county attorney told Marra it would be illegal to follow the supervisors’ orders on the hand count, which means Marra, the county’s election director, “cannot reasonably be expected to comply” unless the court compels her to do so.

About 47,000 Cochise County voters cast ballots in this election, and about 90% have been counted as of Tuesday morning, according to a county estimate. If the expanded hand count moves forward, it would need to happen before the county’s Nov. 28 deadline to certify election results. The supervisors have a meeting scheduled for Friday to certify the results.

The lawsuit says that the supervisors filed it in their official capacity, but Marra told Votebeat on Tuesday morning that the supervisors did not vote publicly to file the lawsuit, and a receptionist in the supervisors’ office confirmed that there was no public vote on the topic. Calls and emails to all three supervisors, the clerk, and county administrator were not immediately returned on Tuesday morning. There was a regularly scheduled supervisors meeting at the time, and Deputy County Administrator Sharon Gilman said she would respond after the meeting. A meeting that had been scheduled for 1 p.m. Tuesday to discuss the expanded hand count was canceled.

In the complaint, Judd and Crosby said the supervisors had not yet had time to meet and formally vote to authorize its participation as plaintiff in the lawsuit, and would amend the filing after they had done so.

Cochise County is one of several Republican-controlled counties in the U.S. to attempt a hand count of ballots after unproven conspiracy theories in 2020 claimed that vote-counting machines were not secure or accurate and had been programmed to fix the vote for Joe Biden.

Under state law, all Arizona counties must conduct a hand count audit of machine-tabulated results if the county’s political parties participate and provide workers. The political parties supervise the hand count, which examines a small portion of ballots and, in non-presidential years, four contests on each ballot.

This audit is typically set up by the counties’ elections directors, and under state law, ballots must remain in the elections directors’ custody until after the election is certified.

Marra had made clear to the supervisors and the court that she would only conduct the statutorily-required hand count. Knowing this, the supervisors had delegated authority to conduct the expanded hand count to Stevens, the recorder, who has supported their effort.

Even after the judge ruled last week that their action to pursue a 100% hand count was illegal, and before the court could even consider the appeal the supervisors filed last week, Stevens proceeded with preliminary steps for an expanded hand count.

He “randomly selected sixteen out of seventeen vote centers to conduct an expanded hand count of election day ballots only,” according to the lawsuit. When the Arizona Democratic Party found out about this effort, its lawyers sent Stevens a letter asserting this was in violation of the court order.

Around the same time, Judd set up a special meeting for Tuesday for the board to consider expanding the hand count up to “99.9%” of ballots.

On Thursday, County Attorney Brian McIntyre sent a letter to a lawyer representing Marra on the matter, telling her that it would be illegal to proceed with the expanded hand count and Marra could be charged with numerous felonies, including interfering with an election, interfering with election equipment, and violating a court order, if she cooperated with the supervisors.

“I have alerted the appropriate authorities to the potential violations based upon the statements of two elected officials connected to this,” McIntyre said. “It is my sincere hope that no action will be required of them and that the rule of law will prevail.”

Meanwhile, Marra proceeded with the typical state-prescribed audit. She told Votebeat this weekend that she had conducted the statutorily-required hand count audit of ballots, and it had found 100% accuracy in the election results.

The lawsuit claims that Marra had refused to comply with the supervisors’ orders by not conducting an expanded hand count, not permitting the recorder and his personnel to access the counting center, and not turning over the ballots to the recorder.

But the complaint does not say if or when the board had reached out to Marra after the judge’s ruling to ask her to expand the hand count, or whether Stevens tried to get access to the ballots.

Asked whether Stevens tried to obtain the ballots, Marra told Votebeat he did not.

“Didn’t even ask,” she said.

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Jen Fifield/Votebeat
Jen Fifield/Votebeat

Jen Fifield is a reporter for Votebeat. She previously covered Maricopa County and Phoenix for The Arizona Republic, including the high-profile review of the county’s 2020 election. Prior to that, she covered politics and government for local newspapers in Maryland and state policy for Stateline, a news service run by The Pew Charitable Trusts. She has won several regional press awards in Arizona and Maryland for her investigative, feature, politics and education reporting. Jen is a Phoenix native and graduated from Arizona State University’s Cronkite School.