Update May 23, 11 a.m. MST: Gov. Doug Ducey signed the bill into law Friday after the Arizona House voted 50-1-9 on May 17 to pass it.
Arizona’s largest county, Maricopa, would likely be required to recount all ballots cast in every election moving forward if a proposed change to state law passes.
The bill, awaiting a final vote as early as today in the Arizona Legislature after garnering bipartisan support, would vastly widen the margin of votes between candidates that triggers an automatic recount in primary and general elections, for almost every type of race. The change would prompt more frequent recounts in large and small counties alike. In the 2020 general election, it would have triggered two statewide recounts and two countywide recounts in Maricopa County, including the presidential race which Joe Biden won narrowly in the state.
The stated goal is to build voter confidence in election outcomes in a battleground state where margins are often tight and recounts are currently rarely allowed. State Sen. Michelle Ugenti-Rita, R-Scottsdale, who introduced Senate Bill 1008, says it would still only require recounts on races that are very close.
“Here is an opportunity to help reinforce the process,” Ugenti-Rita said. “To give the voters confidence that, when races are razor tight, we make sure they were counted accurately.”
But national election consultants with expertise in recounts, along with associations representing officials in Arizona counties, warn the proposal may lead to a burdensome number of recounts, add to election costs, delay election results, and make it difficult to meet deadlines between the primary and general elections. They argue that those are heavy tradeoffs considering that recounts almost never change the outcome of elections.
“The bill will increase costs to run elections because counties will be required to hire additional employees, it will create additional wear and tear on machines, and increased potential for delays in canvassing results,” Robin Hillyard of the County Supervisors Association of Arizona wrote to House Minority Leader Rep. Reginald Bolding in March, urging him to vote no on the bill in committee. Both that association and the Arizona Association of Counties oppose the bill. Bolding voted yes.
The last statewide recount, for a proposition in 2010, examined about 1.8 million ballots. It took between one and two weeks, and was “like having a second election,” according to former Secretary of State Ken Bennett. It cost counties a total of $66,237, according to the secretary of state’s office, which estimates that recounts today would cost much more, considering 3.4 million Arizonans cast ballots in 2020.
Ugenti-Rita said the counties’ opposition shows how unwilling they are to make any changes to elections, even those that have bipartisan support and “make the current law better.”
“This is an important bill, and a reasonable bill, and yet they are picking it apart,” she said. “This is exactly why people don’t give a crap about what counties say anymore because they aren’t willing to make adjustments.”
Historically, across the country, statewide recounts have rarely led to a reversal of results.
In 31 statewide recounts from 2000 to 2019 in the United States, races were reversed three times, according to research from national nonprofit FairVote. Those races all had tiny margins – and all would have already qualified for recounts in Arizona under the current law.
For this reason, the nonprofit recommends Arizona’s existing 0.1 percent margin as a best practice for states, said Deb Otis, senior research analyst.
“It’s already capturing all of the races in which a recount could be consequential,” she said, adding that states with a 0.5 percent trigger can lead to “paying for unnecessary recounts.”
Some national consultants said that while the increased number of recounts may be burdensome for counties, it may also be the right thing to do to improve voter confidence.
“For Arizona it is a matter of balancing the impact as far as the workload for election officials by increasing the election trigger, balance that with increasing public confidence and transparency and the examination of more ballots,” said Mark Halvorson of Citizens for Election Integrity Minnesota.
The bill is one of more than 100 election-related proposals in the statehouse this year, and represents a broader attempt nationally by Republicans to change election laws following the challenges to the 2020 election.
Some Democratic lawmakers oppose the proposal, saying they see it as another misdirected attempt at changing election law to appease the Stop the Steal crowd when current law is working fine.
Democratic state Sen. Martín Quezada said in a hearing in February that the bill was furthering the narrative that voters can’t have confidence in the election results, and “that’s irresponsible of us as policy makers to continue to further that narrative.”
But unlike most other proposals in the state, this bill has momentum. It was one of less than a dozen election bills to make it through the Senate, passing with all Republicans and one Democrat —Sen. Sean Bowie — voting for it. Then, it flew through the House Government and Elections Committee with a unanimous bipartisan yes vote, including from Bolding.
The bill is scheduled to be heard before the House on Tuesday. Lawmakers could decide to vote on the bill shortly after. If it passes without any changes, it would head to the governor’s desk.
This is Ugenti-Rita’s second time proposing the bill. Last year, the bill saw broad support but never made it to a final vote.
Gov. Doug Ducey, who would need to sign the bill for it to become law, indicated his support in a tweet last year, stating that it was one of the election-related reforms he wanted to make this year.
How automatic recounts would be triggered under new law
Under the proposal, automatic recounts would be triggered if the difference in votes between the winner of the election and the runner-up was less than 0.5 percent of the total votes cast for the two candidates.
Currently, automatic recounts are triggered when the margin between the candidates is the lesser of the following: Either 0.1 percent of the total votes cast for the two candidates, or a set number of votes somewhere between 10 and 200, depending on the race.
For statewide races of more than 25,000 votes or statewide ballot measures, the margin threshold is 200; for statewide races of 25,000 votes or less, the number is 50; for state legislative seats, the number is 50; for county, city, or town positions, the number is 10. These set numbers are often the lesser number, and therefore the determinant in whether the recount happens. They would be eliminated under the proposal.
The law would require the same type of recounts as the current law does: A full machine recount of the race along with, in some state and federal races, a 5 percent hand count of randomly selected ballots.
As an example, under the proposal, if the top two candidates in a state senate race together got 100,000 votes and the winner won by 500 votes or less, the race would be automatically recounted, when the law now says that margin would need to be 50 votes or less.
The proposed margin is still “very, very close,” Ugenti-Rita said.
In the 2020 general election, the presidential race – which Biden won by 10,457 out of about 3.3 million votes cast for him or Trump – had about a 0.3 percent margin and would have been recounted statewide automatically under the proposal.
But so would have the state senate race won by Democrat Sen. Christine Marsh (with a 497-vote margin), and many local races. In Maricopa County, that includes the race won by Republican Recorder Stephen Richer (4,599 vote margin) and Republican Supervisor Jack Sellers (403 vote margin).
Ugenti-Rita said the bill is not aimed at reversing election results. But she did say that Biden’s close margin in Arizona, the closest for the presidential race in the country, “highlighted that there is a lot on the line and when these races are close, it’s a good idea to make sure they are counted accurately.”
Questions about Biden’s win led the Republican leaders of the Senate to order the partisan audit of Maricopa County’s election in which the nearly 2.1 million ballots cast were recounted by hand.
That recount, while criticized for being poorly executed and hyper-partisan, again found that Biden won, and did not change the minds of many voters who still believe the election was stolen from Trump.
Margin would “very likely” trigger recounts every election
There have been five Arizona recounts on state races since 2000, including the one statewide recount of Proposition 112 in 2010, according to the secretary of state’s office.
If the bill passes, a preliminary review by Maricopa County found it “is very likely that multiple local and statewide contests would trigger a recount after every primary and general election,” said Megan Gilbertson, Elections Department spokesperson.
The law applies to all races but those for “precinct committeemen, school district governing boards, community college district governing boards, fire district boards or fire district chiefs or secretary-treasurers or boards of other special districts.”
Even if a recount was triggered only for a small city election — say, El Mirage’s ballot question that saw 17,136 ballots cast in 2020 — the county would need to recount all 2 million or so ballots cast, because ballots are not cast or sorted by precinct or city, and so election workers would have to look at all ballots to find those with the municipal question on them. Most ballots are cast in the mail or at vote centers, which allow voters to vote anywhere in the county.
Maricopa County is still working on cost estimates for the potentially increased number of recounts. The county supervisors association also does not have cost estimates from counties, but Hillyard said “it is expected the bill will increase costs to run elections and additional resources to help cover those costs would be helpful.”
Bolding, the Democratic leader supporting the bill, said he plans to introduce an amendment that would require the state to pay counties for the cost of conducting the recounts. Ugenti-Rita said Monday she had not seen the language, so she could not say whether she would support it.
But she did say she believes it’s unnecessary for the state to appropriate funding for the measure, saying the counties “have plenty of money.”
Arizona would be the new Florida for recounts
Ugenti-Rita pointed out that her proposed trigger for an automatic recount is the same as other states.
Alabama, Colorado, Connecticut, Delaware, Florida, New York, and Pennsylvania all have similar triggers, although some vary based on race or have other qualifiers, according to the National Conference of State Legislatures.
In Florida, local recounts have been common since the trigger was put in place in 2001, but statewide recounts have been rare, with just three.
Leon County, Florida, which includes Tallahassee, has done between a half dozen to 10 in that timeframe, said Mark Earley, the county’s supervisor of elections.
In November 2018, it took Leon County four days to conduct a machine recount of the 141,111 ballots cast in three races and two days to conduct a hand recount for two races. The overtime pay cost $13,491 for the machine recount and $15,840 for the hand recount.
The hand count takes time, is stressful, opens the ballots to being mishandled or damaged, opens the process to politics, and always has the potential for fraud, Earley said.
“Everyone has their hand in the cookie jar when elections are most fragile,” he said. “That is not the way to do it.”
But also, he said, he doesn’t see a reason to re-run all ballots through the same machines used the first time.
Florida’s law requires a full machine recount of ballots. It only sometimes requires a hand count to go along with that, if the margin was less than 0.25 percent and if there were enough undervotes or overvotes in the race to change the outcome of the election.
The hand count then only looks at the undervotes and overvotes in the race to determine voter intent. Earley said it makes sense to focus in this way, since you want to catch the ballots that the machines may not have read properly.
He helped the state find what he considers a better way to do audits and recounts, which he said makes sense elsewhere, too. Instead of re-running the ballots through the same machines, Leon County uses Clear Ballot machines, which produce electronic copies of the ballots for later analysis, to scan and read ballots immediately after the election.
Those results can then be compared with the original results under the required audit the county must do, and the images are already available for the recount and to quickly find overvotes and undervotes that need to be evaluated for the hand count.
Bennett, the former secretary of state who was also the liaison to last year’s Senate review of Maricopa County’s election, said he thinks using Clear Ballot, or some other electronic ballot review system, would be smart in Arizona if recounts are going to become more common.
Bennett said that he sees the need to create a standard percentage threshold that determines the trigger, rather than have a number such as 10 to 200. But he would be wary of a law that would require frequent recounts.
In 2010, the recounted ballot measure had passed by 126 votes, Bennett recalled, and after recounting all the ballots by machine, the results changed by only 12 votes.
Other ways to strengthen audits and recounts to improve voter trust
Election consultants say that there are other ways of increasing voter confidence that aren’t as burdensome or costly for local election officials, such as strengthening post-election audits or focusing recounts on looking more closely at voter intent.
Halvorson in Minnesota and others recommend hand counts for recounts instead of simply running the ballots through the same machines again.
Jennifer Morrell of The Elections Group, a national elections consulting firm, said Arizona’s recount bill should be considered hand-in-hand with its existing audit law.
Arizona’s audit law is strong in that it requires a hand count of a certain number of ballots, Morrell said, and then if mistakes are found, more ballots are examined, which could eventually lead to a full hand recount.
Morrell said she understands the concerns counties have about doing recounts more frequently, especially the hand-count part. In Colorado, she said, a hand recount of 500 ballots took three days.
“The only way to get it right is to be slow and methodical,” she said.
But, she said, she also understands the desire to increase the threshold for recounts in Arizona, since it may help assure candidates with tight margins that there were no irregularities in counting votes.
“With the growing chorus of candidates not wanting to concede their loss, this has the potential to help with that.”
Jen Fifield is a reporter for Votebeat based in Arizona. Contact Jen at jfifield@votebeat.org.