Arizona Corporation Commissioner Warns Officials That Using Electronic Voting Machine Tabulators Violates the Law; Cochise County Agrees to Hand Count Ballots

Arizona Corporation Commissioner Jim O’Connor and a group of concerned Arizonans have made some progress in their efforts to convince Arizona’s counties to refrain from using electronic voting machine tabulators in the November 8 election. The Cochise County Supervisors (CCBOS) voted two-to-one during a meeting on Monday to conduct a hand count in addition to using the machines, although after a threat from Arizona Secretary of State Katie Hobbs’ State Elections Director Kori Lorick, it may only be a partial hand count.

“It’s about the people. It’s about our right to vote and have our votes counted and feel confident in the election process,” Republican board member Peggy Judd said, explaining why the hand count is needed. She said immediately before the vote, “I’d like to take this chance. My heart and my work has been in it and I don’t want to back down. I might go to jail.”

O’Connor, who sent a letter in August to county officials around the state urging them to refrain from using the machines, followed up with a second letter this month threatening legal action. He reiterated his position that county officials have discretion under A.R.S. 16-442 whether to use the machines. He said there may be “a potentially fraudulent election” otherwise. O’Connor demanded the county officials produce documentation of the labs’ Election Assistance Commission accreditations at the time the voting machines current build received their Certificates of Conformance, since without it the machines aren’t in compliance with the Help America Vote Act of 2002.

O’Connor cited ICS-Cert Advisory Alert (ICSA-22–154-01) issued by the U.S. Cybersecurity & Infrastructure Security Agency in June, which listed “13 serious security vulnerabilities” involving machines used in Arizona “that have not been mitigated or remedied in our state.” He warned, “Be advised that, in the event you choose to ignore or disregard this notification and conduct your county election on electronic voting machines and tabulators that are later deemed uncertified, and therefore illegally used, every elected official responsible will be held personally liable and accountable.”

On October 19 – before the CCBOS vote – Hobbs sent them a letter asserting that Arizona law does not authorize county officials to conduct a hand count. She warned, “If the Board votes to proceed with a full hand count … the Secretary will take all available legal action to ensure that Cochise County conducts the 2022 General Election in compliance with Arizona law.” She threatened to use A.R.S. 12-348.01 to recover attorneys fees from the CCBOS.

The next day, Hobbs filed an ethics complaint with the Arizona Corporation Commission against O’Connor. She said his initial August 30 letter to county officials around the state “repeated erroneous and debunked conspiracies about voting machines and election security.” She said O’Connor got his information from “election conspiracy theorist Mike Lindell.” Hobbs claimed that O’Connor was really acting in his “personal capacity” to “share debunked conspiracy theories” which was “abusing” his position.

The CCBOS held the meeting to vote on hand counting on Monday. The group of concerned Arizonans testified about the work they have done investigating the machines’ accreditations, working with cybersecurity consultant Michael Schafer. Schafer told the CCBOS that he is an expert witness, since he own a certified testing lab and understands why accreditation is important. Republican supervisor Tom Crosby, who proposed the vote, voted with Judd in favor of the hand count, which will take place after the machine count but prior to the canvass for certification. Supervisor Ann English, a Democrat, voted against it.

State Representative Joel John (R-Buckeye), who has the lowest conservative rating of any Republican in the Arizona Legislature and who endorsed Democrat Adrian Fontes for secretary of state, threatened to complain to the Arizona attorney general if CCBOS proceeds with a full hand count, potentially resulting in a loss of state funds to the county.

After the vote on Monday, Lorick sent a letter to the CCBOS demanding that the supervisors confirm by Wednesday that the county will not conduct a full hand count. The letter claimed that only one percent of early ballots may be hand counted, as well as only four races, and the count cannot take place until the unofficial machine count has already been made public. If the CCBOS did not respond and confirm, Lorick threatened to sue the board with a special action.

The CCBOS held an emergency meeting on Wednesday which settled on a partial hand count, apparently satisfying Lorick’s demands. Cochise County Attorney Brian McIntyre, who has acted hostilely toward the effort, declared that the law doesn’t authorize it. Since he threatened the supervisors that they would be personally liable if there were lawsuits, the CCBOS scheduled a meeting for November 1 to discuss alternative legal counsel. Arizona has a long history of county supervisors feuding with county attorneys, resulting in supervisors hiring their own independent counsel.

The group of Arizona citizens spearheading the movement contends that the electronic voting machine tabulators are illegal since the labs that certify the machines were not accredited at the time the tabulators received their certificate of conformance. Their accreditations expired in 2017 and 2018.

In an explainer video, the group asserts that the lack of valid lab accreditations before the 2020 election means the labs were not entitled to certify any of the three types of machines used in Arizona. They said the E.A.C. excuse for lack of Certificates of Accreditation was due to poor administrative errors, improper interpretation of 52 USC 20971 (c)(2) and even COVID-19, which wasn’t declared and emergency until long after the Accreditations should have been completed. A.R.S. 16-442(B) requires Arizona’s voting machines to be “tested and approved by a laboratory that is accredited pursuant to the help America vote act of 2002.”

In the video, the group notes that Hobbs understands the importance of valid certifications, citing a letter she sent to Arizona Senate audit liaison Ken Bennett on May 5, 2021, complaining that Cyber Ninjas was not qualified to conduct the Senate’s independent ballot audit. Hobbs wrote, “The hardware and software supplied by Cyber Ninjas to capture and display the ballot images in this counting process are untested and uncertified.”

The group’s efforts are continuing around the state, through ongoing talks with supervisors in several counties. However, Daniel Wood told The Arizona Sun Times they are being stonewalled by attorneys who tell the county supervisors they can’t conduct hand counts. “The supervisors need to use A.R.S. 11-532(7) and require their attorneys to put their opinion in writing so the public can view it,” he said. “And at the county board meeting, I noticed the county attorney appeared to violate A.R.S. 11-403(B)(2)(d), (g), and (h), since I observed him attempting to politically influence the supervisors. It is the duty of the county attorney under A.R.S. 11-532(9) to act as the supervisors’ attorney when they’re acting in good faith, and in this situation they are acting in good faith.”

Wood also referenced A.R.S. 11-410(D), which states, “Employees of a county shall not use the authority of their positions to influence the vote or political activities of any subordinate employee.” Section (F) of that statute provides for a penalty of up to $5,000.

Cochise County Republican Chairman Robert Montgomery told the CCBOS to throw Lorick’s letter “in the bucket somewhere.” He said a full hand count would be “easy to do,” and there were already 160 volunteers waiting to make it happen. Cochise County Recorder David Stevens, who has been supportive of the idea of hand-counting ballots and who would likely conduct the hand count, pointed out that avoiding the machines would save the county millions of dollars.

Several counties across the U.S. will be hand-counting ballots instead of using machines for the November 8 election, and a judge ruled that it is lawful in Nevada.

France conducts its presidential election completely by hand count, and there is no mail-in voting. The counting is finished within an hour and a half after polls close on Election Day. There are about 47.8 million registered voters in France.

Cochise County has 87,000 registered voters, of which 45,927 cast votes in the last similar election in 2018. Cochise County Elections Director Lisa Marra said a hand count would take 2,500 hours.

Brian Steiner, who is part of the group working to stop the use of the machines in elections, disagreed. “However, if you split those hours by the 160 volunteers, then it would only take 15.63 hours to count all ballots,” he told The Sun Times.  “With polling places opening at 6 a.m. until 7 p.m., having results by 10 p.m. that night would be easily achievable, and this could be a great test to only using hand counting of ballots in the future.”

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Rachel Alexander is a reporter at The Arizona Sun Times and The Star News NetworkFollow Rachel on Twitter. Email tips to [email protected].
Photo “Jim O’Connor” by Jim O’Connor. Background Photo “Voting Booths” by Tim Evanson. CC BY-SA 2.0.

 

 

 

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