The delay of election certification is not as straightforward as one might think. Yesterday, I wrote a column on the certification process in Arizona in two counties and another in Pennsylvania. The column covered Mohave and Cochise Counties because I felt their Boards of Supervisors (BOS) deserved some attention for their decision to delay certification until the last day. I wanted to understand their attitudes and their approach to the process. I learned some things along the way as I watched the Supervisors digest the decisions before them. I also watched most of the Maricopa County canvass meeting. The Maricopa County hearing was qualitatively different in tenor from the other two. I will not focus on that meeting because, frankly, in my opinion, Gates and his cohorts were sickeningly dismissive of the agony so clearly present in the room. It is one thing to have to follow certification laws. It is quite another to seemingly respond as dispassionately as they did about something as important as an election.
I learned yesterday that for the Board of Supervisors, the certification process is nothing more than an administrative rubber stamp. A.R.S. 16-642 states that the “governing body holding an election shall meet and canvass the election not less than six days nor more than twenty days following the election.” We can argue whether the law is a good one, but the facts are county Supervisors were mandated to certify elections by Nov. 28 unless “the returns from any polling place in the election district where the polls were opened and an election held are found to be missing.” In the case that something is missing, the board would consider the certification day by day not to exceed thirty (30) days of the election (Dec. 8) per A.R.S. § 16-648. At thirty days, the governor and secretary of state shall have received certifications from all counties. In essence, because votes are at stake, a county must have a material reason to delay certification, such as missing returns or evidence of uncertified equipment, as is the case in Cochise County. Mohave had nothing material and was delayed only because of what they saw in Maricopa County. Each county is responsible only for its own certification.
JUST IN: Arizona Secretary of State Katie Hobbs (D) sues Cochise County for failing to certify its election results by today's statutory deadline. Hobbs alleges that the county and its supervisors are violating Arizona law.
— Election Wizard 🇺🇸 (@ElectionWiz) November 29, 2022
I am not one to spin my wheels over things I cannot change. However, I have given this election certification business a great deal of thought over the past two years. There are a couple of solutions that come to mind- one pertains to the BOS certification process, and the other to the constitutional rights of every American. Every American has the power to initiate and participate in these solutions. There are things each of us can do.
In the case of the Board of Supervisors, one of the reasons they are mainly a rubber stamp is the presence of machines in elections. Simply stated, machines potentially remove transparency and, at this point, cause distrust in elections. Votes tabulated on a machine are much less likely to be accurately verified and/or audited. Therefore, a BOS must rely upon that which is reported to them as tabulated by a machine to certify their county’s election.
I believe if a Board of Supervisors is to have a confident ‘yes’ vote for certification after a canvass, they must be able to look to a procedure that more accurately verifies that the votes recorded are the ones intended by the voter. That would mean Arizona should return to paper ballots like the one suggested by the candidate for Secretary of State, Mark Finchem. Those ballots should be made public record. Ballots do not have any identifying information on them once they are separated from the ballot envelope. I suspect that people with the wrong kind of power do not want ballots to be public record because it will lay bare issues with the count on tabulators. If citizens can examine and count ballots, they will be much closer to accurate results and can also identify counterfeit ballots. And after that kind of examination, a Board of Supervisors will be closer to a confident certification of the election. Citizens can push their counties and legislatures to adopt paper ballots and hand counts.
Another way to fight for clean elections is to bring a constitutional lawsuit on behalf of the voters of a county. This kind of lawsuit can be brought before or after certification because it is not an election challenge. Rather it is a constitutional challenge based on equal protection and due process. Just as the State of Texas properly held standing to sue Pennsylvania, Georgia, Michigan, and Wisconsin after the 2020 election, citizens in a county can pressure County Commissioners to sue Maricopa County based on violations of their constitutional rights. The Supreme Court wrongly threw the case out based on standing. However, Texans did have the standing to sue those states based on the idea that those states’ elections were allegedly either fraudulent or officials in the state failed to follow election laws, thus disenfranchising voters in other states. The same could be said for Maricopa County. Voters in Maricopa were allegedly cheated out of their votes due to machine malfunction or long lines, thus disenfranchising voters in other counties.
For good reason, many people in this country are angry and dispirited. I understand the anger and attitudes. Many are now threatening to “never vote again.” Many say, “nothing is ever done.” I sometimes feel the same way. I heard today that upwards of 400,000 Republican voters who showed up for the 2020 Presidential Election failed to vote in the 2022 election in Maricopa county alone. Not every one of those voters was turned away at the polls. Not voting is like playing a basketball game without making any shots at the basket and expecting to win.
No one who is fighting these battles gets up in the morning and says, “oh yay, another day of trying to figure out how to unwind problems that took years to create.” No one who is fighting to return elections to the citizens of this country sees a clear path or feels it is easy. However, a few relatively straightforward solutions would make elections much more transparent; Clean voter rolls, paper ballots, and hand counts.
If this were easy, every county and state would have already thrown out the machines. The facts are that human beings, even well-meaning ones, are often complex creatures of habit, investing in and attaching to things that are sometimes illogical. The reason for the attachment to the current election administration system is manyfold and not the purpose of this column.
If I am honest, the most dispiriting thing at this point is not the mess we have in front of us but the apparent lack of grit and determination in the citizenry to fix it. Online platforms make it very easy to lash out, whine, or express self-pity and powerlessness in the face of adversity. However, I submit that those actions and feelings, while completely human and understandable, are, in the end, both depleting to the fighters and entirely unconstructive.
When I listened to the two meetings in Mohave and Cochise counties, I saw two genuinely engaged groups of people, most of whom seemed to be very earnest in their wish to do the right thing on behalf of their constituents. In my opinion, they do not deserve our rage. I challenge any reader here to watch the entire meeting and not see that these people were genuinely conflicted about how to proceed. Maybe it would be more helpful to jump in the fight. The fighters are few, even though it is evident that many more are engaged than in 2020. For that, I am boundlessly grateful. However, we need more fighters and fewer who merely complain. I would challenge Americans to pull up their britches and pitch in. If we are going to restore trust in elections, we truly need all hands on deck.