Claiming that a non-binding resolution overrides state law, an Arizona Republican state senator on Monday declared that Arizona counties are barred from using machines to count ballots — an assertion that was quickly shot down by elections officials, the state’s attorney general and county leaders.
Senate Majority Leader Sonny Borrelli penned a letter to all 15 Arizona counties on Monday, telling them that they were barred from using any machines to administer future elections. He claimed that the legislature’s recent approval of Senate Concurrent Resolution 1037 was binding under a radical interpretation of a constitutional provision that would effectively allow state legislatures to do whatever they want with elections.
The core of the so-called “plenary powers” theory is that legislatures can change election rules and administration whenever they want and however they want, with no checks or balances by the judicial or executive branches.
In this case, Borrelli claimed that, even though Gov. Katie Hobbs vetoed actual legislation that would have changed state law to ban all election machines used in Arizona, a change in the law isn’t needed to bar those machines because of SCR1037.
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The resolution is little more than a statement of the legislature’s belief on the topic and does not carry the weight of law. It declares that voting equipment is critical infrastructure and should be “open source” and made entirely in the United States, that specific machines cannot be used in the state, and outright disallows the use of any electronic equipment to tabulate, vote or record vote totals.
The idea that the resolution could override the state law that expressly allows machines to be used in Arizona elections, and highly regulates which ones can be used and in what manner, was roundly denounced by state and county leaders.
“Senate Concurrent Resolution 1037, which expresses a desire to restrict the use of certain electronic voting machines, is non-binding and does not have the force of law,” Secretary of State Adrian Fontes said in a statement on Twitter. “If those requirements or certification process were to be changed, it would require a regular bill to be passed by the legislature and signed by the governor—which is not the case for this non-binding resolution. We defer to the AG’s office on all other legal questions.”
Under Arizona law, election equipment must be certified by both the state and federal governments, with specific requirements at each step of the process. The resolution seeks to circumvent this process altogether.
“The attorney general agrees with (Fontes’) legal assessment on the matter,” Richie Taylor, spokesperson for Attorney General Kris Mayes, told the Arizona Mirror. “The SCR is non-binding and has no legal impact. We have not formulated any official opinion on the senator’s letter.”
In his letter sent to Arizona’s 15 counties, Borrelli states that Article 1, Section 4, Clause 1 of the U.S. Constitution gives state legislators the authority to make these sorts of changes to elections. This legal theory of state legislatures and “plenary power” has become a focus of some on the right, and has been pushed for by attorneys like John Eastman.
Eastman was one of former President Donald Trump’s lawyers who, in the days leading up to the Jan. 6 riot, lobbied the legal counsel for former Vice President Mike Pence to overturn the results of the election using “plenary authorities.”
Eastman, who is facing disbarment in California, also gave the same talk to former Arizona Speaker of the House Rusty Bowers, saying lawmakers had the “plenary authority” to overturn Trump’s 2020 loss in Arizona. Eastman also wrote a memo some have gone on to call the “coup memo” that cites the same section of the constitution Borrelli did in his letter to the Arizona counties.
“A single member of the Arizona State Senate cannot make laws or direct other divisions of government to take actions counter to state law,” Maricopa County Board of Supervisors Chairman Clint Hickman said in a statement to the Mirror. “Arizona law requires the use of tabulation equipment to count paper ballots. I’m supportive of sourcing machinery and components made in the United States, but until that is realistic, the Board of Supervisors will appropriate the dollars needed to acquire EAC certified equipment in order to perform accurate, secure elections as defined by state law.”
Even in Borrelli’s home county of Mohave, among the deepest red places in the state, his declaration that the resolution overrode state law received a chilly reception. Buster Johnson, one of the county’s GOP supervisors, said the county “take(s) our election security very seriously” and has ensured its election machines “are certified and kept up-to-date” in accordance with state law.
Johnson also criticized Borrelli for undermining faith in elections.
“This is just a resolution which carries no weight in law. By sending out (a letter) on official state letterhead, it will needlessly confuse a lot of people who will erroneously believe that it is a fact,” he said.
The resolution Borrelli cited in his letter also singled out one piece of election equipment specifically. The Dominion ImageCast X was found to have some vulnerabilities by the Cybersecurity and Infrastructure Security Agency, though the vulnerabilities are limited. In CISA’s report on the ballot-marking machine, nefarious actors would “require physical access to individual ImageCast X devices, access to the Election Management System (EMS), or the ability to modify files before they are uploaded to ImageCast X devices.”
The report also noted that many of the jurisdictions that have these devices already use the mitigation practices in place as “standard practice” that would be needed in order to prevent the security vulnerabilities. CISA also found “no evidence that these vulnerabilities have been exploited in any elections.”
The devices in question are only used in Maricopa County, and electronic ballot-marking machines are only used in Arizona in limited instances. The entire state uses paper ballots, while ballot-marking machines are used for voters with disabilities who may not be able to physically use a pen and paper. (The machine still prints out a physical ballot, which is then tabulated alongside other ballots.)
“This is a resolution, not legislation, regarding election equipment and systems,” Pima County Elections Director Constance Hargrove said to the Mirror. “It does not have the force of law, it’s the opinion of legislators.”
And Borrelli’s letter isn’t backed by his fellow GOP leaders in the state Senate. Kim Quintero, a spokeswoman for Senate Republicans, said he sent the letter “independent” of Senate President Warren Petersen and others in the caucus. She directed additional questions to Borrelli.
Borrelli did not respond to a request for comment.
***UPDATED: This story has been updated to include comments from Buster Johnson.
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