Photo by Jim Small | Arizona Mirror
A Republican bill supported by Democratic Secretary of State Adrian Fontes that would make ballot images a public record cleared its first hurdle Wednesday, despite concerns from Democrats about privacy issues.
The legislation, which was introduced by Arizona Speaker of the House Ben Toma, would require all 15 Arizona county recorders to send the secretary of state a digital image of every ballot cast in an election. They would also have to give the secretary of state a list of all eligible voters prior to the election and a list of those who voted in the election. The secretary of state would then publish all of that information online.
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Toma’s House Bill 2560 also has a mirror version in the Arizona Senate, sponsored by Sen. Ken Bennett, R-Prescott, who testified to the House Municipal Elections and Oversight Committee Wednesday on Toma’s behalf.
“I want this bill to earn the support of two-thirds of both caucuses in both the House and the Senate,” Bennett said, stressing during his testimony the bipartisan roots of the bill, which is an idea long promoted by Democratic election activist John Brakey.
Brakey and Bennett both worked together as liaisons between the Senate and the contractors it hired to conduct a partisan “audit” of the 2020 election. That election review, which was championed by many Republicans as destined to ferret out massive voting fraud they claimed led to Donald Trump’s loss, ultimately found no evidence of any fraud and concluded that Joe Biden won Maricopa County.
Brakey does not believe that there was widespread fraud in the 2020 election, but has been a major proponent of using the cast vote record and ballot images as a way to instill voter confidence in election systems. The group Brakey is a part of, AUDIT USA, has previously sued for ballot images but lost in court, as state law requires that the images not be disclosed as a public record. Brakey is currently appealing the ruling.
Bennett explained to the House panel on Wednesday that the idea behind the bill is to allow those with concerns about the election to be able to check the results for themselves. A voter could see if a ballot image matched what was recorded and if the people registered to vote did or did not vote in a given election.
However, there were some technical snags that Bennett, who served as secretary of state from 2009 until 2014, acknowledged would need to be ironed out with amendments.
For starters, there is the concern of privacy, especially when it comes to individuals with similar names. In the list that would become public, it would include a voter’s name, address and precinct.
But people with the same name — such as a father and son, for example — could muddy up the data, creating duplicates. Bennett said no easy solution has been identified, as introducing a birthdate would inevitably lead to identity theft and create other issues.
Others also raised concerns about privacy relating to alternative ballot forms, including those used by visually impaired Arizonans.
“If I had a bundle of 5,000 voters and I had one visually impaired voter and I see them walking down the street with their guide dog and their stick, I’m going to know how they voted,” Rep. Laura Terech, D-Scottsdale, said about voters who use braille ballots. “I think it is very important that we are very, very thoughtful and very, very careful of privacy.”
While law enforcement, judges, attorneys and victims of domestic violence already have their addresses protected under state law, Bennett said it might be worth expanding definitions in the current bill to protect voters who use braille ballots.
Secretary of State Adrian Fontes, who said he supported a similar measure in 2017, added that there are more than just braille ballots that could prove complicated. Members of the military overseas, voters with disabilities who use electronic ballot-marking devices and voters who have their ballots read to them will all have to be considered as well, he said.
“I think there is a lot of important stuff that needs to be covered,” Fontes said, adding that the issue is one that he personally feels very strongly about. Fontes said that the measure would bring “public verifiability” to the election process.
All county recorders don’t support the measure, but could do so in the future if it is amended to add provisions they want.
“Almost all our concerns have been addressed,” said Jen Marson, a lobbyist for the Arizona Association of Counties, which represents the interests of county recorders. The counties opposed the bill previously but are “almost there” on supporting the measure, she said, and are looking for some additional measures to help counties in implementing what the bill is hoping to achieve.
Specifically, the counties are hoping to mandate that the secretary of state require people who wish to download the data first create an account so data usage can be tracked. The bill makes it a class one misdemeanor to alter a ballot image or the cast vote record, and the counties believe that collecting information on who is downloading data would better enable the state to track people who may use the data to spread false information.
The counties are also worried about the privacy implications, as the current draft of the bill has a data limit that goes down to voter blocs of 10. In nearby Colorado, which does post images, the limit is 20, and Marson said in conversations with their counterparts there that increasing that number protected voter privacy.
“This type of system will make it clear for voters on who voted,” said Aaron Flannery, the lobbyist for the Maricopa County Recorder’s Office. Flannery said the county would be “very proud” to support the bill, adding that putting the images up would be “pretty instantaneous,” as the tabulation machines already create a scan of ballots.
The county did express concerns about the extra work that could be created by generating images for overseas ballots and large print ballots.
Support from Fontes and Maricopa County was not enough to sway the Democratic members of the committee to support the bill in its current form, though.
“I don’t want to see another Cyber Ninjas audit take place in this state,” Rep. Cesar Aguilar, D-Phoenix, said. “I also do not want to see us lean into the conspiracy crazy state that we hear at a national level.”
Still, Aguilar said he was willing to continue the conversation, as he appreciated the transparent and “genuine” approach of Bennett.
“I want more people weighing in on this issue,” Terech said, explaining her no vote. “What we are contemplating here is a major, major change and I have grave concerns on the privacy implications on this bill.”
Terech echoed Aguilar and said she hopes to continue speaking with her Republican colleagues about possible fixes to the bill, but could not vote for the current version.
The bill passed along party lines and will head to the full House next for consideration.
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