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A letter from the Arizona Senate majority leader to all of the state’s 15 counties Monday is sowing confusion over whether Arizona counties can still use machines to count ballots in future elections.
The letter from Sen. Sonny Borrelli, however, changes nothing about existing laws governing election equipment.
Borrelli’s letter tells county leaders that the Legislature, through a resolution they passed earlier this year, is prohibiting the use of “electronic voting systems” as the primary method of conducting federal elections unless the systems meet certain criteria — criteria that election systems currently used in Arizona do not currently meet.
But Borrelli’s assertion is not true. The resolution didn’t have the force of law, and the law hasn’t changed. Borrelli sent the letter out on his own, not on behalf of the Senate’s Republican majority. And counties will continue to follow the state and federal laws governing how they must run elections, according to Secretary of State Adrian Fontes, a Democrat.
If this seems a little strange and complicated, that’s understandable. Let’s take it one question at a time:
What did the Legislature actually do?
House and Senate Republicans passed what’s called a Senate Concurrent Resolution in March on party-line votes.
This type of resolution is simply a declaration of the Legislature’s opinion. It isn’t intended to change or override state law. It doesn’t go to the governor or voters for final approval to become law, as a bill or ballot referendum would.
The resolution, SCR 1037, declared that state lawmakers were concerned about the security of electronic voting systems. It said that no electronic voting system could be used as the primary way of “conducting, counting, tabulating or verifying” federal elections in the state unless: They were made in the U.S. and accredited as prescribed by the U.S. Department of Defense; the source code is publicly available; and certain data is made publicly available within 24 hours of the polls closing.
Why didn’t those legislators pass a real law banning the machines?
They tried. Both House and Senate Republicans passed Senate Bill 1074, which had similar language to the resolution, but Gov. Katie Hobbs, a Democrat and former secretary of state, vetoed it on April 6, saying “the election equipment required by the bill, as well as the problem it purports to solve, does not exist.”
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“This bill neither strengthens our democracy, nor ensures that Arizonans can better exercise their fundamental right to vote,” she wrote.
Why is Borrelli claiming the resolution has the force of law?
To summarize, Borrelli said in his letter that the U.S. Constitution gives state legislatures the final say in how elections are run.
He appears to be asserting that by passing the resolution, lawmakers were exercising their “plenary” or near-absolute power to determine the “times, places and manner” in which elections are run.
He’s evoking here what’s called the “independent state legislature theory,” a theory pending before the U.S. Supreme Court in Moore v. Harper, a case related to redistricting in North Carolina. This theory, especially in its broadest form, claims that the U.S. Constitution gives state legislatures sweeping power to determine the “times, places and manner” of federal elections without subjecting their decisions to the usual checks, such as review by state courts under the state constitution or gubernatorial vetoes.
What are counties supposed to do in response to Borrelli’s letter?
They can ignore it. The resolution “is non-binding and does not have the force of law,” Fontes said in a statement Monday, adding that election equipment must be certified under requirements set out by federal and state law.
“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,” Fontes wrote.
Maricopa County Supervisors Chairman Clint Hickman emphasized in a statement that the letter came from Borrelli as an individual and not the Republican caucus, and individual lawmakers “cannot make laws or direct other divisions of government to take actions counter to state law.”
“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 certified equipment, Hickman said.
Neither Republican Senate President Warren Petersen nor Republican House Speaker Ben Toma responded to questions from Votebeat about whether they supported Borrelli’s letter or the assertions in it.
Why do Borrelli and other Republican legislators want to ban voting machines?
Ever since former President Donald Trump began falsely claiming that voting machines had switched votes in favor of President Joe Biden, costing him the 2020 election, his supporters have been pushing states to ban electronic voting machines, claiming that hand-counting would make for safer elections. Hand counting has been proven to be far less accurate and efficient, though.
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The resolution gives a few examples of machine vulnerabilities that lawmakers are concerned about, including one stemming from vulnerabilities recently announced by the U.S. Cybersecurity and Infrastructure Security Agency. Electronic voting machines, like any electronic systems, have vulnerabilities, but there are many checks and balances in place to ensure they count votes accurately.
“Election officials use varying technological, physical, and procedural controls to help safeguard these systems and the integrity of the election processes they support,” reads CISA’s website addressing election misinformation. “It’s important to note that there is no indication that cyber vulnerabilities have contributed to any voting system deleting, losing, or changing votes.”
The Senate resolution also gives an example of a local Tennessee election that had to be redone after a machine coding error.
What laws do Arizona counties follow for how to count ballots?
Arizona law requires the use of electronic equipment to count paper ballots.
Counties can only use equipment that has been certified by the state and federal government, and the equipment has to pass tests prior to every election to ensure it is counting ballots accurately.
The GOP desire to hand-count ballots instead of counting by machines pushed Cochise County in November to attempt to illegally hand-count all ballots as part of its post-election audit. That audit, by law, only tallies a certain portion of votes on a small number of ballots.
A judge blocked that plan, saying that it was illegal.
On Monday, Attorney General Kris Mayes, a Democrat, issued an opinion agreeing with the court’s decision. She told counties to “discard” an earlier informal opinion from prior Attorney General Mark Brnovich, a Republican, on the matter, which Cochise County officials had used to try to support their case in November.
What could happen next?
Despite Fontes saying that counties will proceed as normal, some elected leaders or election officials across the state could attempt to use Borelli’s assertions to claim their county has the right to hand-count ballots, just as Cochise County officials did with Brnovich’s informal opinion last year.
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Some Republican officials could also take this as an opportunity to rebuke the claim and condemn the false narrative. In Mohave County, Republican County Supervisor Buster Johnson criticized Borrelli on Monday, telling The Arizona Mirror that the resolution “carries no weight in law,” and “it will needlessly confuse a lot of people.”
Or, the letter may simply become one of those false claims that consistently recirculates on social media, when convenient.
Jen Fifield is a reporter for Votebeat based in Arizona. Contact Jen at firstname.lastname@example.org.