Legal Analysis, Reports August 31, 2022

A Democracy Crisis: Arizona Spotlight 

This factsheet spotlights the status of election subversion legislation and other efforts in Arizona.
Issue Areas

Updated August 31, 2022

Arizona Legislation Increasing the Risk of Election Subversion

In the 21 months since the 2020 presidential election, legislatures across the country have moved to seize power from professional, non-partisan election administrators and to needlessly expose the running of elections to partisan influence and disruption. This effort increases the risk of a crisis in which the outcome of an election could be decided contrary to the will of the people. This year alone, lawmakers across 30 states have introduced hundreds of new bills that increase the likelihood of election subversion, whether directly or indirectly. In some cases, the potential subversion is quite direct—for example, bills that give the legislature the power to choose a victor contrary to the voters’ will. In others, the impact is less direct but still dangerous. Some bills would introduce dysfunction and chaos into the election system and could lead to delay, uncertainty, and confusion, all of which could provide cover for subversion. This factsheet spotlights the status of election subversion legislation and other efforts in Arizona.

In our report on this trend, we analyzed legislation introduced in Arizona and determined whether they might fall into one of several types of proposals that increase the risk of election subversion. These categories include:

#1: Usurping control over election results.

A handful of states have considered bills that would give legislators direct or indirect control over election outcomes, allowing lawmakers to reject the choice of the voters. Although these proposals did not become law in 2022, that they are even being introduced indicates that legislatures are considering the option to overturn future elections. This raises obvious alarms for democracy.

As of July 31, we have found 3 bills in this category that were introduced this year in Arizona or carried over from last year.

#2: Requiring partisan or unprofessional “audits” or reviews.

Legislation proposing unprofessional or biased reviews of election results has surged in 2022. These bills call for procedures that are vague or subject to abuse, and in some cases hand the power to call for audits to political parties or the legislature. These bills threaten to call election outcomes perpetually into doubt. They would tie up election administrators and likely would amount to state-sponsored vehicles for disinformation.

As of July 31, we have found 6 bills in this category that were introduced this year in Arizona or carried over from last year.

#3: Seizing power over election responsibilities.

Legislatures have proposed shifting power from professional election administrators to partisan legislatures or legislatively appointed officials. These bills increase the danger of partisan election manipulation and raise the risk of an election crisis.

As of July 31, we have found 8 bills in this category that were introduced this year in Arizona or carried over from last year.

#4: Creating unworkable burdens in election administration.

These bills increase the risk of subversion by intruding on the granular details of election administration. One particularly dangerous flavor of these bills, under consideration in Arizona, would require all ballots to be counted by hand, practically guaranteeing delays, higher rates of counting error, and increased risk of tampering by bad actors.

As of July 31, we have found 15 bills in this category that were introduced this year in Arizona or carried over from last year.

#5: Imposing disproportionate criminal or other penalties.

Legislatures have proposed criminal prosecution of election officials for poorly defined offenses and have created criminal and civil liability for steps that election officials routinely take to help voters cast ballots. States are also escalating the enforcement of election laws by creating entirely new law enforcement agencies, which can breed distrust in elections and election officials and interfere with effective election administration.

As of July 31, we have found 13 bills in this category that were introduced this year in Arizona or carried over from last year.

Arizona Legislative Spotlight

Arizona considered legislation that would have given the legislature control over future election results. Arizona HB 2476, would change the procedure for choosing the state’s Electoral College electors. Instead of selecting all of the electors based on the statewide popular vote, one elector would be awarded based on the popular vote in each of Arizona’s congressional districts, and the selection of the remaining two electors would be placed directly in the hands of the state legislature. Arizona HB 2596 would have required the legislature to come into session to review the results of all primary and general elections—essentially transforming the legislature into the state’s final certification authority. Under the bill, if the legislature rejects the election results, a new election may be held. The measure also authorizes the legislature to audit any regular primary or general election.

Arizona also considered legislation to decertify the 2020 presidential election results in the state. Arizona HCR 2033, was sponsored by Secretary of State candidate Mark Finchem, who has been endorsed by former President Trump.

Arizona also considered SB 1285, which would have switched direct approval power over the state’s Election Procedures Manual—which provides detailed instructions on how elections should be conducted to every voting jurisdiction in the state—from the secretary of state to the legislative council and attorney general.

Arizona also considered legislation that would require all ballots to be hand counted (HB 2289; HB 2596; HB 2743; SB 1338; and SB 1348) and audits of election systems (AZ HB 2244 & HB 2777).

SB 1574 would have required county election officials to “maintain a record of all voting irregularities that occur during early voting, emergency voting and election day voting.” The bill instructed clerks to “describe the irregularity” but provided no guidance on what counted as an irregularity. Within 30 days after election day, the county officer must provide the record of the irregularities to legislative leadership, with a copy sent to the secretary of state. Any official who failed to follow these instructions could be punished with a Class 2 misdemeanor of up to four months in prison.

SB 1027 would have created the “Bureau of Elections,” a brand-new agency within the state government’s executive branch “to investigate allegations of fraud in any state, county, or local government election” with a $5 million appropriation. Any qualified voter would be able to submit a complaint to the Bureau. To conduct its investigations, the Bureau would be given subpoena power and the authority to hold hearings. If its investigation revealed a “substantial likelihood” of election fraud, the bill would have had the Bureau publicly announce their finding and refer the matter to a prosecuting agency.

SB 1359 would have required election officials who have access to electronic systems to change their passwords every two weeks or face a possible misdemeanor charge.

Subversion from Beyond the Statehouse

Legislative election investigations

In 2021, the Arizona state senate hired an unqualified firm called Cyber Ninjas run by a biased CEO to conduct an “audit” of the election results from Maricopa County. Although the Cyber Ninjas’ activities unleashed a torrent of litigation and negative press coverage, the state senate has continued to press for more investigations. Arizona’s chaotic review of the 2020 election was a prime example of how unprofessional reviews create election integrity problems rather than resolving them, as we detailed in our 2021 Report. The Cyber Ninjas firm was not qualified to conduct an official election audit and did not follow proper procedures, which resulted in ballots being destroyed and its results being widely debunked as misleading or false. The firm ultimately collapsed and laid off all of its employees after it finished its work in Arizona. Meanwhile, the Arizona Attorney General’s office issued a report based on its review of the Cyber Ninjas’ findings, which concluded that the 2020 results were accurate but nevertheless set off a new wave of doubts when it also opined that there were “questions” about that election.

Threats against election officials

Across the country, hundreds of thousands of people play a role in administering our elections, keeping them free, fair, and safe. These are the public servants and community leaders who make American democracy work—from governors and secretaries of state, to local and county officials, to temporary workers staffing the polls. Increasingly, however, election officials and workers are the targets for threats—both in the lead up to an election and throughout the year.

  • In March 2022, Republican Attorney General Mark Brnovich urged a county prosecutor to investigate whether Democratic Secretary of State Katie Hobbs committed the misdemeanor of failing to perform a duty under election law, simply because she briefly shut down an election-related website so that its maps could be updated to reflect recent redistricting.
  • Maricopa County Recorder Stephen Richer and his wife, who received threats and harassment after he criticized the discredited Cyber Ninjas audit of the county’s 2020 election results, faced a new round of death threats when he asked voters to use special county-supplied pens to vote in this year’s August primary.
  • Pinal County has had three election directors in the last two years and is short-staffed, in part, due to the hostile environment for election workers. In the lead-up to the state’s August primary, the office erroneously left a number of races off more than 60,000 early voting ballots, resulting in substantial disruption to the election.

Election Deniers

As 2022 began, more than 100 so-called election deniers were in the running to be either governor, attorney general, or secretary of state. Many of them are campaigning on lies and conspiracy theories. For example, Kari Lake, who is the Republican gubernatorial nominee in Arizona, has said she would not have certified her state’s election of President Joe Biden in 2020. Mark Finchem, the Republican nominee for secretary of state, was outside the U.S. Capitol on January 6, 2021 to protest the presidential election results. The Republican nominee for attorney general, Abraham Hamadeh, is also an Election Denier, who called his opponents and other Republicans “weak-kneed” for supporting certification of the 2020 election.