Democratic Attorney General Kris Mayes, who is embroiled in an election lawsuit from Republican Abe Hamadeh contesting his loss to her by 280 votes, reversed an opinion on May 18 from previous Attorney General Mark Brnovich stating that counties have statutory authority to conduct hand counts of ballots. The difference in opinions came down to whether counties could conduct hand counts of all the ballots in five contested races, or merely a small percentage of ballots in those five races.
Mayes sent a letter to the original legislator who requested the opinion from Brnovich, State Sen. David Gowan (R-Sierra Vista). “This is to inform you that Ariz. Att’y Gen. Op. I22-004, dated October 28, 2022, is withdrawn and superseded by the following formal Opinion of the same number dated May 18, 2023,” she said. “Please discard the opinion dated October 28, 2022.”
Mayes wrote that she relied on an opinion from Pima County Superior Court Judge Casey F. McGinley issued on November 7, 2022, who ruled that that the statute governing the hand counts, A.R.S. 16-602, only allows a random selection of ballots from “[a]t least two percent of the precincts in that county, or two precincts, whichever is greater … from a pool consisting of every precinct in that county.” McGinley was deciding whether Cochise County could conduct a hand count, and noted that county officials relied on the state’s Election Procedures Manual (EPM) for authority to expand the number of ballots counted. The EPM states, “Counties may elect to audit a higher number of ballots at their discretion.”
McGinley reasoned that since the statute stated that the ballots must be “randomly selected,” he refused to allow that this could be harmonized with choosing all of them. The county officials wanted to audit 30,000 ballots, but McGinley said he interpreted the statute to allow for no more than 5,000 ballots.
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