Ariz. All. for Retired Am., Inc. v. Crosby – 10/18/2023

November 6, 2023

Arizona Court of Appeals Division Two holds that counties may not conduct hand-count audits of all precinct or early ballots in the first instance.

The Cochise County Board of Supervisors passed a resolution requiring the County Recorder to facilitate a hand-count audit of all ballots cast in the 2022 general election.  The Arizona Alliance for Retired Americans (“AARA”) asked the court to enjoin the County and order that any 2022 recount be conducted in accordance with the statute governing election audit procedures, A.R.S. § 16-602.  AARA argued the statute’s multi-step process prohibited the County from conducting an initial hand-count audit of all precinct ballots or all early ballots (which are not collected by precinct) in the first instance.

The trial court granted AARA’s request and enjoined the County from its planned audit of all precinct and early ballots.  The County appealed and the Court of Appeals affirmed.

First, the appellate court found that, although the 2022 general election had concluded, the County’s appeal was not moot because the County’s discretion to conduct a total initial audit was an issue likely to recur in future elections.

Second, the court agreed with AARA and the trial court that the statutorily mandated multi-step procedure for county election audits does not provide counties with discretion to count all precinct ballots or early ballots in the first instance. Rather, counties must first audit a subset of ballots.  The audit may continue only if that audit results in a difference equal to or greater than the designated margin of error with respect to the electronically tabulated ballots. The statute then requires the county to recount that subset before expanding the audit to a larger subset. The county may hand count all the ballots only if the expanded audit results equal or exceed the designated margin of error. This process is essentially the same for both precinct ballots and early ballots, albeit with different numerical requirements for subsets.

The court rejected the County’s assertion that the statute’s numerical parameters for measuring subsets permitted a subset to comprise all ballots (or all early ballots). The court reasoned that skipping to a total recount would render the multi-step process of auditing subsets superfluous, which violated basic principles of statutory interpretation.

The court also rejected the County’s arguments that either Title 11, specifically A.R.S. § 11-251(3), or the Arizona Secretary of State 2019 Elections Procedures Manual (EPM) expanded the County’s discretion beyond the statutory grant of authority. The court found Title 11 can only expand the County’s authority in the absence of  statutory guidance. Because § 16-602 set forth clear directives, Title 11 did not apply. Next, the court found that the EPM could not expand a county’s discretion beyond its statutory authority. To the extent the EPM did so, the requisite provision was void.

Judge Kelly authored the opinion of the court, in which Presiding Judge Brearcliffe and Judge Eckerstrom joined.

Posted by: Payslie M. Bowman