ARIZONA
This policy brief gives reporters quick access to important concepts, laws, and procedures of elections in ARIZONA.
The information is grouped by three pillars: transparency, verification of results, and judicial review. It aims to be a go-to resource, especially when journalists must cover close, contested, and disputed elections. Today's voters have many questions about the fairness of elections. So, the Election Overtime project aims to inform media coverage of elections that helps explain how elections are grounded in the impartial rule of law. The brief focuses on structures that enable fairness and confidence, such as the role of poll watchers, rigorous verification procedures, and the evidentiary requirements of the courts for races that are contested.
The Election Reformers Network team stands ready to support journalists in deploying this content in your coverage.
The information is grouped by three pillars: transparency, verification of results, and judicial review. It aims to be a go-to resource, especially when journalists must cover close, contested, and disputed elections. Today's voters have many questions about the fairness of elections. So, the Election Overtime project aims to inform media coverage of elections that helps explain how elections are grounded in the impartial rule of law. The brief focuses on structures that enable fairness and confidence, such as the role of poll watchers, rigorous verification procedures, and the evidentiary requirements of the courts for races that are contested.
The Election Reformers Network team stands ready to support journalists in deploying this content in your coverage.
PILLAR 1: Transparency
Election officials, like all public servants, deserve respect and support. However, with a process as critical as elections, it’s important to ensure these officials are accountable to the voters. Like many other areas of governance in the United States, transparency is one of the key mechanisms for that accountability. While there are many ways transparency can be built into election systems, one of the most important is the right established by law for competing parties to post their own observers to watch many of the phases of the election.
In recent decades, as democratization efforts challenged authoritarian rule in many countries, reformers prioritized the right of parties to observe elections as an essential element of free and fair elections.
In recent decades, as democratization efforts challenged authoritarian rule in many countries, reformers prioritized the right of parties to observe elections as an essential element of free and fair elections.
QUESTION 1: Who can observe elections?
1.a. The major parties are provided with multiple opportunities to hold the election process accountable and protect their candidates.
1.b. Arizona places few restrictions on who can serve as a partisan observer.
1.c. Parties control the selection and management of observers.
Arizona does not require any training to become an election observer, though to be useful to the parties they are representing, observers should be trained in their role and knowledgeable about election procedures. That can help ensure credibility of their accounts if they observe problems.
Many states require observers to be trained and, in some states, the state election department supports observer training. Parties also have a responsibility to ensure their observers understand their role, and know not to interfere in any way with the election process.
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CONTEXT: Political party observers are an important part of the process.
Election observers who represent their political parties can provide important validation about the vote counting process, and they can be trusted messengers within their political networks. However, without proper training, they can make mistakes or false assumptions. Some states require training; many do not.
One example of the importance of training observers comes from the Principles for Trusted Elections, a cross-partisan program co-chaired by family members of former U.S Presidents Gerald R. Ford (Republican) and Jimmy Carter (Democrat). The principles call on all candidates to “encourage political parties and others to train poll-watchers on the election process and appropriate roles and behaviors, responsibilities, and obligations.”
Candidates, voters, and civic organizations can endorse these principles by signing a short online form.
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- Inspectors and Judges are senior poll workers that are hired by the board of supervisors. Candidates for the position of judge, and in some cases inspector, may be chosen by the parties. In Arizona, each set of judges and inspectors is called a board of elections.
- Observers are designated representatives of the parties and candidates who may observe and take written record of election procedures including testing of equipment, voting operations, ballot transfers, and recounts. While at the polling booth they may also challenge another voter’s qualifications, something any qualified elector of the county is allowed to do. Nonpartisan candidates and political action committees for ballot measures are together only allowed three additional people at a time and only during certain processes.
- Early Ballot Challengers are designated representatives of the parties who may challenge early ballots based on specific statutory grounds.
1.b. Arizona places few restrictions on who can serve as a partisan observer.
- Who can observe: Partisan observers must be residents and registered to vote in Arizona. They are not required to be registered in the county in which they do their observation, as is the case in many states. Also, Arizona allows the immediate family members of candidates to serve as observers. This is not the case in every state.
- Who cannot observe: Precinct committeeman candidates, candidates appearing on the ballot, and official write-in candidates. Only observers appointed by recognized parties and groups are allowed to closely watch the election process. Documentation of their appointment to specific locations is provided by the parties in writing and, in general, no more than one representative per party is allowed to be present at a site.
1.c. Parties control the selection and management of observers.
Arizona does not require any training to become an election observer, though to be useful to the parties they are representing, observers should be trained in their role and knowledgeable about election procedures. That can help ensure credibility of their accounts if they observe problems.
Many states require observers to be trained and, in some states, the state election department supports observer training. Parties also have a responsibility to ensure their observers understand their role, and know not to interfere in any way with the election process.
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CONTEXT: Political party observers are an important part of the process.
Election observers who represent their political parties can provide important validation about the vote counting process, and they can be trusted messengers within their political networks. However, without proper training, they can make mistakes or false assumptions. Some states require training; many do not.
One example of the importance of training observers comes from the Principles for Trusted Elections, a cross-partisan program co-chaired by family members of former U.S Presidents Gerald R. Ford (Republican) and Jimmy Carter (Democrat). The principles call on all candidates to “encourage political parties and others to train poll-watchers on the election process and appropriate roles and behaviors, responsibilities, and obligations.”
Candidates, voters, and civic organizations can endorse these principles by signing a short online form.
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QUESTION 2: What about nonpartisan election observers and the public?
2.a. Nonpartisan election monitoring is different from partisan observation.
Nonpartisan election observation is an impartial process where trained observers systematically gather data about an election in order to assess key aspects of the process and report on the degree to which the election was fair, peaceful, and credible. Grounded by facts and evidence, trustworthy observers validate the critical work being done by those on the front lines of our democracy. When organized correctly, observers cannot be party actors or advocates — in fact, observers agree to follow a strict code of conduct to ensure they remain nonpartisan and don’t interfere with the voting process. According to The Carter Center, which is an international leader in election monitoring, nonpartisan observation is a common best practice in many democracies around the globe.
2.b. Arizona provides limited opportunities for nonpartisan monitors and the general public to observe election procedures.
Arizona does not explicitly provide opportunities for impartial or nonpartisan monitors. However, the state livestreams counting procedures, enabling the general public and researchers to observe that aspect of the work after the polls close. Additional details on observation procedures are presented in state law.
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CONTEXT: Titles can be confusing.
Throughout this section we use the terms “nonpartisan election observers” or “nonpartisan election monitors” to refer to people – often researchers – whose role is to be impartial and focus on the process. Think of these people as researchers or “good government” advocates. Note: this role is often confused with assigned observers for ballot initiatives, independent candidates, or nonpartisan candidates (such as observers for school board races).
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Nonpartisan election observation is an impartial process where trained observers systematically gather data about an election in order to assess key aspects of the process and report on the degree to which the election was fair, peaceful, and credible. Grounded by facts and evidence, trustworthy observers validate the critical work being done by those on the front lines of our democracy. When organized correctly, observers cannot be party actors or advocates — in fact, observers agree to follow a strict code of conduct to ensure they remain nonpartisan and don’t interfere with the voting process. According to The Carter Center, which is an international leader in election monitoring, nonpartisan observation is a common best practice in many democracies around the globe.
2.b. Arizona provides limited opportunities for nonpartisan monitors and the general public to observe election procedures.
Arizona does not explicitly provide opportunities for impartial or nonpartisan monitors. However, the state livestreams counting procedures, enabling the general public and researchers to observe that aspect of the work after the polls close. Additional details on observation procedures are presented in state law.
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CONTEXT: Titles can be confusing.
Throughout this section we use the terms “nonpartisan election observers” or “nonpartisan election monitors” to refer to people – often researchers – whose role is to be impartial and focus on the process. Think of these people as researchers or “good government” advocates. Note: this role is often confused with assigned observers for ballot initiatives, independent candidates, or nonpartisan candidates (such as observers for school board races).
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QUESTION 3: What are observers allowed to see?
3.a. Most election procedures, including testing of election equipment, are open to observation from party representatives and the public.
Party observers must be able to observe any significant voting, processing, and counting activities as well as transportation of ballots from the voting location to a receiving site. Observers cannot interfere with or impede the election procedures or staff, and they can be asked to leave if they do so.
Party observers must be able to observe any significant voting, processing, and counting activities as well as transportation of ballots from the voting location to a receiving site. Observers cannot interfere with or impede the election procedures or staff, and they can be asked to leave if they do so.
PILLAR 2: Verification of Results
For citizens and politicians, elections are a lot like horse races, with the focus squarely on who’s ahead at the end. For election professionals, by contrast, a better metaphor is a series of accounting problems. Does everything balance including seal numbers on equipment, ballots used, initial tabulations and audit results, etc.? Election procedures and paperwork are built to facilitate this verification.
Verification is supported by redundancy, with multiple layers of checks designed to find any errors and confirm accuracy.
Verification is supported by redundancy, with multiple layers of checks designed to find any errors and confirm accuracy.
QUESTION 4: How is the security and accuracy of equipment verified?
4.a. Vote counting accuracy is tested before and after voting.
Vote counting in Arizona is done with tabulators that scan voters’ hand-marked ballots and total up the votes for the different races as ballots are entered. In large communities, nearly all ballots marked at the polling station on election day are fed into the scanner by the voters themselves. In smaller counties, ballots are sometimes scanned and counted in a central location with oversight from observers and a legally mandated live-stream. The exceptions are provisional ballots, or ballots that are mailed or placed in drop boxes. Mailed and drop-box ballots are transported to central facilities and scanned with high-speed scanners. For both types of equipment, election officials must demonstrate before and after voting takes place that a set of test ballots is accurately counted. This process is called “Logic and Accuracy” testing.
According to a national ranking of logic and accuracy testing, Arizona performs some of the most rigorous testing of voting machines in the country. According to the review, observers from local political parties are even invited to contribute their own votes on a test ballot to ensure the tabulator counts them accurately.
4.b. No equipment used to cast a ballot is connected to the internet.
As explained in the Secretary of State’s manual, tabulation and other voting equipment is secured and sealed, tracked, and isolated from external connections throughout the voting process. Equipment is ‘air-gapped’ meaning there is no physical or network connection between pieces of equipment. After polls have closed, vote tabulations are transferred on a memory stick or device that, if needed, is physically transported for consolidation. A person who inappropriately modifies voting equipment may be charged with a felony.
4.c. Votes are marked on paper ballots which are retained to be available for rechecking.
Paper ballots are considered best-practice. Maintaining a paper-trail, as Arizona counties do, is the recommended approach for election administration. Officials can audit or recount the paper ballots if there are concerns about the results from electronic tabulators. According to Verified Voting, on election day the vast majority of voters in the U.S., including in Arizona, mark their ballots by hand. (Equipment used for early voting may differ from that used on election day.)
Voters who are unable to mark a ballot by hand have the option to use a ballot-marking-device (BMD), an assistive device like a touch screen that provides voters with a printed copy or coded version of their ballot. (More information on the equipment used by each county is available on the state’s website.) BMDs do not store information; the only record is the paper ballot provided to the voter.
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CONTEXT: A Note About Ballot Marking Devices (BMDs)
While some experts suggest voting is more efficient and accessible when all voters use a BMD, others disagree. The national organization Verified Voting recommends that voters mark ballots by hand, citing research that voters are not likely to verify their BMD printout before putting in the machine. By contrast, the Center for Civic Design favors BMDs, in part because of their speed in tabulation and ease of use for voters with disabilities. The U.S. Election Assistance Commission, a bipartisan federal commission, simply recommends that jurisdictions maintain paper ballots, regardless of how they are marked. To compare the different types of voting technology for yourself, visit MIT’s election data lab.
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4.d. Equipment is certified by the Secretary of State.
According to statute, voting and tabulation equipment must be certified by the Arizona Secretary of State after review by a bipartisan team. Local jurisdictions can only use machines that are on the list of technology certified by the Secretary of State and in compliance with federal security guidelines.
Vote counting in Arizona is done with tabulators that scan voters’ hand-marked ballots and total up the votes for the different races as ballots are entered. In large communities, nearly all ballots marked at the polling station on election day are fed into the scanner by the voters themselves. In smaller counties, ballots are sometimes scanned and counted in a central location with oversight from observers and a legally mandated live-stream. The exceptions are provisional ballots, or ballots that are mailed or placed in drop boxes. Mailed and drop-box ballots are transported to central facilities and scanned with high-speed scanners. For both types of equipment, election officials must demonstrate before and after voting takes place that a set of test ballots is accurately counted. This process is called “Logic and Accuracy” testing.
According to a national ranking of logic and accuracy testing, Arizona performs some of the most rigorous testing of voting machines in the country. According to the review, observers from local political parties are even invited to contribute their own votes on a test ballot to ensure the tabulator counts them accurately.
4.b. No equipment used to cast a ballot is connected to the internet.
As explained in the Secretary of State’s manual, tabulation and other voting equipment is secured and sealed, tracked, and isolated from external connections throughout the voting process. Equipment is ‘air-gapped’ meaning there is no physical or network connection between pieces of equipment. After polls have closed, vote tabulations are transferred on a memory stick or device that, if needed, is physically transported for consolidation. A person who inappropriately modifies voting equipment may be charged with a felony.
4.c. Votes are marked on paper ballots which are retained to be available for rechecking.
Paper ballots are considered best-practice. Maintaining a paper-trail, as Arizona counties do, is the recommended approach for election administration. Officials can audit or recount the paper ballots if there are concerns about the results from electronic tabulators. According to Verified Voting, on election day the vast majority of voters in the U.S., including in Arizona, mark their ballots by hand. (Equipment used for early voting may differ from that used on election day.)
Voters who are unable to mark a ballot by hand have the option to use a ballot-marking-device (BMD), an assistive device like a touch screen that provides voters with a printed copy or coded version of their ballot. (More information on the equipment used by each county is available on the state’s website.) BMDs do not store information; the only record is the paper ballot provided to the voter.
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CONTEXT: A Note About Ballot Marking Devices (BMDs)
While some experts suggest voting is more efficient and accessible when all voters use a BMD, others disagree. The national organization Verified Voting recommends that voters mark ballots by hand, citing research that voters are not likely to verify their BMD printout before putting in the machine. By contrast, the Center for Civic Design favors BMDs, in part because of their speed in tabulation and ease of use for voters with disabilities. The U.S. Election Assistance Commission, a bipartisan federal commission, simply recommends that jurisdictions maintain paper ballots, regardless of how they are marked. To compare the different types of voting technology for yourself, visit MIT’s election data lab.
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4.d. Equipment is certified by the Secretary of State.
According to statute, voting and tabulation equipment must be certified by the Arizona Secretary of State after review by a bipartisan team. Local jurisdictions can only use machines that are on the list of technology certified by the Secretary of State and in compliance with federal security guidelines.
QUESTION 5: How do officials verify registration and validity of individual votes?
5.a. Arizona officials draw on a range of sources to check voter qualifications and update voter rolls, within limits set by federal law.
A challenge that Arizona, and every other state faces, is that Americans move a lot and rarely let voting officials know. The result is an ongoing risk that voting rolls will contain names of people no longer eligible to vote in the state. However, wide-scale purges of voter rolls can lead to worries about possible voter suppression (as seen by concerns about activities in Texas in summer 2024).
A system that helps address voter registration problems is the Election Registration Information Center (ERIC), which enables limited information-sharing between states. Arizona is a member of ERIC and can use that membership to help identify names of voters no longer in the state. (Arizona has retained its membership in ERIC, standing against what is widely considered by election officials to be misinformation about the program. In the last two years, nine states withdrew their membership and subsequently encountered significant problems replacing the data benefits of the system.)
In addition to ERIC, Arizona voter registrations are also cross-referenced with other state and national databases and sources including the state’s Department of Motor Vehicles, the Social Security Administration, and court documentation on felony convictions and jury service disclosure. Throughout the country, election officials also draw on the National Change of Address (NOCA) service, particularly if mail to them is returned by the post office. A combination of these factors can cause a state to move a voter to inactive status, and then if longer periods of nonresponse pass, to remove the voter from the rolls. Federal law prohibits removing voters from registration within 90 days of an election, a timeframe matched in Arizona law.
Note: Improperly registering and voting, whether by lack of residency, criminal status, or lack of citizenship, is a felony offense in Arizona.
5.b. Protections prevent registration by noncitizens
Arizona has one of the strictest citizenship enforcement mechanisms in the country. To vote a full ballot with both federal and state candidates, voters must submit proof of citizenship. If voters cannot show proof of citizenship at the time of registration, they can register to vote for federal offices by filling out a federal-ballot only registration form attesting that they are citizens. After a recent US Supreme Court Decision, voters who fill out the full-ballot registration form and don’t provide proof of citizenship will be rejected and will not be able to vote for any office.
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CONTEXT: Non-Citizen Voting
The Heritage Foundation has conducted research on a range of possible avenues for voter fraud. Their published national analysis of legal actions identified 24 instances of noncitizens voting between 2003 and 2023, across 50 states and millions of votes cast.
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In addition, under certain circumstances, registration applications for new voters are placed in a pending status until the applicant’s citizenship status can be positively verified via the Department of Driver Services and/or USCIS’s Systematic Alien Verification for Entitlements (SAVE) program. This program helps ensure that only citizens vote in Arizona elections. At the same time, however, the program can delay new citizens from exercising their right to vote, because the government databases sometimes do not keep pace with individuals who have gained citizenship status.
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CONTEXT: What about the Federal-Only ballots?
In Arizona, those who fail to provide full proof of citizenship but otherwise complete their registration can vote in federal races only. As of July 2024, 42,301 people, or 5% of total registered voters in Arizona, were registered to vote on a federal only ballot. One geographic analysis shows that rather than citizenship status, the likely reason for this partial registration is that the applicants are college students or homeless individuals who do not have easy access to a birth certificate or other proof of citizenship.
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5.c. An ID is required to vote in person, or a voter may use a conditional provisional ballot.
As detailed in the state’s manual, all in-person voters must show ID of their legal residence in Arizona to vote. Those that do not have appropriate ID are given a conditional provisional ballot which is isolated, and only counted if the voter brings ID to the county recorder within five business days.
Arizona is one of 12 states that requires individuals without an ID to confirm their registration later. This makes the state’s voter ID laws stricter than most others in the country.
5.d. Vote by mail is signature-verified.
As of 2023, Arizona, along with 28 states and the District of Columbia have no-excuse absentee laws. (Seven states conduct their entire election by “absentee” ballot.) In Arizona, ballots can be mailed or dropped off at polling locations or other approved locations that must be situated at a government building.
All early ballots, including ballots-by-mail and those cast in-person must be signed, and the signature must be checked against the signature on file from the voter’s registration by the County Recorder or other officer in charge of elections.
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Good News On Provisionals
The number of provisional ballots in Arizona has trended downwards since 2012 when 7.89% of ballots cast were provisional.
In 2020 and 2022 provisional ballots made up 1.47% and .66% of ballots cast. Of the provisional ballots cast in 2020, only .59% were ultimately rejected. One likely reason for this trend is that the public is better educated about how to keep their registrations up to date and what ID to present when voting.
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5.e. Arizona officials can pre-process and scan early ballots.
In Arizona, early in-person and mail ballots can be processed and tabulated as soon as the safety and accuracy of tabulation equipment is verified. However, the results cannot be reported until all voting is complete. Allowing officials to verify signatures, prepare ballots for counting, and scan ballots into tabulators before election day is a best practice that greatly improves their ability to provide timely unofficial results.
A challenge that Arizona, and every other state faces, is that Americans move a lot and rarely let voting officials know. The result is an ongoing risk that voting rolls will contain names of people no longer eligible to vote in the state. However, wide-scale purges of voter rolls can lead to worries about possible voter suppression (as seen by concerns about activities in Texas in summer 2024).
A system that helps address voter registration problems is the Election Registration Information Center (ERIC), which enables limited information-sharing between states. Arizona is a member of ERIC and can use that membership to help identify names of voters no longer in the state. (Arizona has retained its membership in ERIC, standing against what is widely considered by election officials to be misinformation about the program. In the last two years, nine states withdrew their membership and subsequently encountered significant problems replacing the data benefits of the system.)
In addition to ERIC, Arizona voter registrations are also cross-referenced with other state and national databases and sources including the state’s Department of Motor Vehicles, the Social Security Administration, and court documentation on felony convictions and jury service disclosure. Throughout the country, election officials also draw on the National Change of Address (NOCA) service, particularly if mail to them is returned by the post office. A combination of these factors can cause a state to move a voter to inactive status, and then if longer periods of nonresponse pass, to remove the voter from the rolls. Federal law prohibits removing voters from registration within 90 days of an election, a timeframe matched in Arizona law.
Note: Improperly registering and voting, whether by lack of residency, criminal status, or lack of citizenship, is a felony offense in Arizona.
5.b. Protections prevent registration by noncitizens
Arizona has one of the strictest citizenship enforcement mechanisms in the country. To vote a full ballot with both federal and state candidates, voters must submit proof of citizenship. If voters cannot show proof of citizenship at the time of registration, they can register to vote for federal offices by filling out a federal-ballot only registration form attesting that they are citizens. After a recent US Supreme Court Decision, voters who fill out the full-ballot registration form and don’t provide proof of citizenship will be rejected and will not be able to vote for any office.
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CONTEXT: Non-Citizen Voting
The Heritage Foundation has conducted research on a range of possible avenues for voter fraud. Their published national analysis of legal actions identified 24 instances of noncitizens voting between 2003 and 2023, across 50 states and millions of votes cast.
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In addition, under certain circumstances, registration applications for new voters are placed in a pending status until the applicant’s citizenship status can be positively verified via the Department of Driver Services and/or USCIS’s Systematic Alien Verification for Entitlements (SAVE) program. This program helps ensure that only citizens vote in Arizona elections. At the same time, however, the program can delay new citizens from exercising their right to vote, because the government databases sometimes do not keep pace with individuals who have gained citizenship status.
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CONTEXT: What about the Federal-Only ballots?
In Arizona, those who fail to provide full proof of citizenship but otherwise complete their registration can vote in federal races only. As of July 2024, 42,301 people, or 5% of total registered voters in Arizona, were registered to vote on a federal only ballot. One geographic analysis shows that rather than citizenship status, the likely reason for this partial registration is that the applicants are college students or homeless individuals who do not have easy access to a birth certificate or other proof of citizenship.
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5.c. An ID is required to vote in person, or a voter may use a conditional provisional ballot.
As detailed in the state’s manual, all in-person voters must show ID of their legal residence in Arizona to vote. Those that do not have appropriate ID are given a conditional provisional ballot which is isolated, and only counted if the voter brings ID to the county recorder within five business days.
Arizona is one of 12 states that requires individuals without an ID to confirm their registration later. This makes the state’s voter ID laws stricter than most others in the country.
5.d. Vote by mail is signature-verified.
As of 2023, Arizona, along with 28 states and the District of Columbia have no-excuse absentee laws. (Seven states conduct their entire election by “absentee” ballot.) In Arizona, ballots can be mailed or dropped off at polling locations or other approved locations that must be situated at a government building.
All early ballots, including ballots-by-mail and those cast in-person must be signed, and the signature must be checked against the signature on file from the voter’s registration by the County Recorder or other officer in charge of elections.
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Good News On Provisionals
The number of provisional ballots in Arizona has trended downwards since 2012 when 7.89% of ballots cast were provisional.
In 2020 and 2022 provisional ballots made up 1.47% and .66% of ballots cast. Of the provisional ballots cast in 2020, only .59% were ultimately rejected. One likely reason for this trend is that the public is better educated about how to keep their registrations up to date and what ID to present when voting.
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5.e. Arizona officials can pre-process and scan early ballots.
In Arizona, early in-person and mail ballots can be processed and tabulated as soon as the safety and accuracy of tabulation equipment is verified. However, the results cannot be reported until all voting is complete. Allowing officials to verify signatures, prepare ballots for counting, and scan ballots into tabulators before election day is a best practice that greatly improves their ability to provide timely unofficial results.
QUESTION 6: How are the initial tabulations checked and verified?
6.a. The initial results are subject to confirmation testing and oversight.
Within 24 hours after the polls close, local elections officials launch a tabulation audit in a random selection of at least 2% of precincts in the county or two precincts (whichever is greater). In the audit, officials compare a hand count of votes from a randomly selected set of races to the electronic tallies at the close of the polls.
Election results do not become official until ballots are reviewed and processed, and until the auditing process is complete. Official certification, via canvassing, cannot happen until six days after voting.
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CONTEXT: Official Results Come Later
In the interest of transparency, preliminary returns are presented on election night. But this is not the final word. Official returns come later, after all ballots have been counted, audited, and certified.
Today, lack of understanding of the audit and certification process contributes to concerns about the accuracy and trustworthiness of results. When misinformation about these post-election activities is circulated, it can make it harder for officials to do their jobs in a timely and accurate manner.
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6.b. Arizona’s method of auditing is preferable to widespread hand counts.
Confusion about the certification process has led some activists to demand that ballots be hand counted. This is not recommended as a best practice in election administration.
A 2012 comparison showed that hand counts are less accurate than machine counting. Audits involving partial hand counts can be used as an additional data point and an additional check to verify the overall outcome, but full hand counts would make elections slower, less accurate, and less secure. Arizona and most other states use sample-based audits to ensure their count is timely and accurate.
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CONTEXT: More On Hand Counts
At best, a system that relies on hand counting will take longer to generate results. But, the real risk is that it opens the door to exhausted poll workers making errors and gives bad-faith actors more fodder and time to act. We want our teachers and police officers to do their jobs using the best, most proven, technology and methods. We should want the same for election officials. In Arizona, conducting audits and carrying out automatic recounts empowers officials to get voters results in a timely and effective manner.
However, if Arizona wanted – in the future – to improve on this already solid foundation of checks and confirmations, it could adopt risk-limiting audits, an approach some states use.
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6.c. Once all audits are complete, the canvass can help to ensure that significant issues are addressed.
The canvass is the official recording and certification of the results. The canvass requires documentation to ensure that appropriate election procedures were conducted, including audits and investigation of concerns.
6.d. Close elections are automatically subject to a recount.
Automatic recounts apply to elections for most offices and ensure that close races, where wrongdoing and mistakes are of heightened concern, are triple checked. While the automatic recount is in progress, officials can’t release vote totals. Instead, a judge must declare the winner in open court. In 2022, Arizona lowered the threshold for automatic recounts, meaning that more are likely to be required
Previously, only races that were as close as .1% or less would see a recount. Now, races in which the difference is .5% or less will see a recount.
Under the old margin, there were only five recounts of state races between 2000-2020. In 2022, the first election with the new margins, there were three recounts in one general election.
Some states allow campaigns or individuals to request a recount when the margin is too large to trigger an automatic recount, but Arizona does not have this provision. The automatic recount process is largely the same as the original count procedure. All equipment must be tested again and random precincts are audited. These procedures are in place to ensure that discrepancies are found and investigated and cannot occur on a scale that could affect the outcome of the election.
Where there are discrepancies between the initial result and the result from the automatic recount, the officer in charge of elections shall undertake reasonable efforts to reconcile the discrepancy and provide a report to the Secretary of State explaining the reasons.
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CONTEXT: Recounts Rarely Change the Outcome
An analysis by Fairvote found that in roughly 7,000 statewide races across the U.S from 2000-2023, there were only three recounts that changed the outcome of the race, and those were all elections with a margin of victory of less than 0.06%. However, small discrepancies can happen. In fact, most recounts differ marginally from the original results of the election. The purpose of recounts isn’t to confirm exactly the same results, but rather to ensure that any individual errors or attempts at fraud could not have changed the results of an election.
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Within 24 hours after the polls close, local elections officials launch a tabulation audit in a random selection of at least 2% of precincts in the county or two precincts (whichever is greater). In the audit, officials compare a hand count of votes from a randomly selected set of races to the electronic tallies at the close of the polls.
Election results do not become official until ballots are reviewed and processed, and until the auditing process is complete. Official certification, via canvassing, cannot happen until six days after voting.
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CONTEXT: Official Results Come Later
In the interest of transparency, preliminary returns are presented on election night. But this is not the final word. Official returns come later, after all ballots have been counted, audited, and certified.
Today, lack of understanding of the audit and certification process contributes to concerns about the accuracy and trustworthiness of results. When misinformation about these post-election activities is circulated, it can make it harder for officials to do their jobs in a timely and accurate manner.
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6.b. Arizona’s method of auditing is preferable to widespread hand counts.
Confusion about the certification process has led some activists to demand that ballots be hand counted. This is not recommended as a best practice in election administration.
A 2012 comparison showed that hand counts are less accurate than machine counting. Audits involving partial hand counts can be used as an additional data point and an additional check to verify the overall outcome, but full hand counts would make elections slower, less accurate, and less secure. Arizona and most other states use sample-based audits to ensure their count is timely and accurate.
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CONTEXT: More On Hand Counts
At best, a system that relies on hand counting will take longer to generate results. But, the real risk is that it opens the door to exhausted poll workers making errors and gives bad-faith actors more fodder and time to act. We want our teachers and police officers to do their jobs using the best, most proven, technology and methods. We should want the same for election officials. In Arizona, conducting audits and carrying out automatic recounts empowers officials to get voters results in a timely and effective manner.
However, if Arizona wanted – in the future – to improve on this already solid foundation of checks and confirmations, it could adopt risk-limiting audits, an approach some states use.
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6.c. Once all audits are complete, the canvass can help to ensure that significant issues are addressed.
The canvass is the official recording and certification of the results. The canvass requires documentation to ensure that appropriate election procedures were conducted, including audits and investigation of concerns.
6.d. Close elections are automatically subject to a recount.
Automatic recounts apply to elections for most offices and ensure that close races, where wrongdoing and mistakes are of heightened concern, are triple checked. While the automatic recount is in progress, officials can’t release vote totals. Instead, a judge must declare the winner in open court. In 2022, Arizona lowered the threshold for automatic recounts, meaning that more are likely to be required
Previously, only races that were as close as .1% or less would see a recount. Now, races in which the difference is .5% or less will see a recount.
Under the old margin, there were only five recounts of state races between 2000-2020. In 2022, the first election with the new margins, there were three recounts in one general election.
Some states allow campaigns or individuals to request a recount when the margin is too large to trigger an automatic recount, but Arizona does not have this provision. The automatic recount process is largely the same as the original count procedure. All equipment must be tested again and random precincts are audited. These procedures are in place to ensure that discrepancies are found and investigated and cannot occur on a scale that could affect the outcome of the election.
Where there are discrepancies between the initial result and the result from the automatic recount, the officer in charge of elections shall undertake reasonable efforts to reconcile the discrepancy and provide a report to the Secretary of State explaining the reasons.
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CONTEXT: Recounts Rarely Change the Outcome
An analysis by Fairvote found that in roughly 7,000 statewide races across the U.S from 2000-2023, there were only three recounts that changed the outcome of the race, and those were all elections with a margin of victory of less than 0.06%. However, small discrepancies can happen. In fact, most recounts differ marginally from the original results of the election. The purpose of recounts isn’t to confirm exactly the same results, but rather to ensure that any individual errors or attempts at fraud could not have changed the results of an election.
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QUESTION 7: Who certifies results in Arizona, and what issues have arisen around certification?
7.a. Certification is the official sign-off on election results at different levels of election governance.
In Arizona, certification takes place at the county and state levels. County certification is the responsibility of the county boards of supervisors, which are composed of three or five members elected in partisan elections. The boards have broad administrative responsibilities in the county, in addition to their narrow involvement in elections.
During certification, the boards receive precinct-by-precinct results and other information from county election officials, and they affirm that the aggregate outcome accurately sums up the underlying data.
County reports are submitted to the secretary of state, who is responsible for certifying the results for all elections that cross county lines, such as for state officers, U.S. House and Senate, relevant state legislative offices, and ballot initiatives. This state-level certification must be completed by the fourth Monday following the election.
7.b. Certifying results is “ministerial,” a required function, not an exercise of investigation or judgment.
A court can compel certification if necessary. Arizona laws, procedures, and court precedents make clear that certification is not optional or discretionary. For example, the Arizona Election Procedures Manual states that the county boards of supervisors have a “non-discretionary duty to canvass” and have “no authority to change vote totals, reject the election results, or delay certifying the results.”
If a county board of supervisors or the secretary of state were to refuse to certify, a court can mandate certification be completed, relying on a writ of mandamus, which compels government officials to comply with the law and is an effective tool for addressing certification refusal.
County boards and the secretary of state can raise clerical questions during certification, such as whether results have been provided from all jurisdictions, but questions and concerns about the accuracy of the results prepared by election officials are addressed by other means. (See 7.d.)
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CONTEXT: Certification Processes Similar to Congressional Validation of the Presidential Election
The final counting of Electoral votes in Congress during the Presidential election follows the same logic. (See ECRA section below.) Members of Congress can object to electoral votes only on extremely narrow grounds, such as if an elector voted to elect a president and vice president of the same state, which is not permitted by the Constitution.
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7.c. Some individuals responsible for certification in Arizona have refused to certify results. All were resolved.
In previous elections, some members of county boards of supervisors in Arizona initially refused to certify results or voted to delay certification. All these instances were resolved, with members eventually voting to certify. In one case, state election officials filed legal actions that led to a court mandating that the board members certify the results.
Across the county in recent years, each instance of refusal to certify was resolved by either the courts compelling certification, the refuser changing their vote, or the refuser being outvoted on the certifying body. Election results were not affected, nor were post-election time-frames significantly delayed. However, these types of conflicts can create baseless doubts about elections among voters, and they can undermine faith that officials will adhere to the law in the face of partisan concerns and pressures.
7.d. Arizona law provides other, better-suited means to address challenges and concerns about the accuracy of results.
Candidates and political parties have the right to challenge election results in court after county and state certification. These challenges are managed by courts, institutions expressly designed for the task of hearing evidence and rendering judgment. Arizona law also provides for audits and recounts, which can identify potential problems with the accuracy of results. (See Pillar 3 for information on legal challenges to election results.)
Strictly speaking, therefore, until any recounts and court challenges are completed, the results certified by the county boards and secretary of state may be subject to change. It is rare, however, for an election outcome to change after certification.
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CONTEXT: Certification in U.S. Different from Other Democracies
Election certification is a feature of U.S. elections that is highly unusual from an international perspective. A recent study of 12 major democracies found that none has a separate certification step in their election process. In fact, none has the word “certification” (or its equivalent) in their election laws at all. Instead, election administrators announce the results, courts hear any challenges, and court decisions are final. Also, very few countries, involve political parties in the results process. In the US, by contrast, most of the individuals involved in certification at the state and local levels are either party members elected in partisan elections or are nominated by parties to election boards.
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In Arizona, certification takes place at the county and state levels. County certification is the responsibility of the county boards of supervisors, which are composed of three or five members elected in partisan elections. The boards have broad administrative responsibilities in the county, in addition to their narrow involvement in elections.
During certification, the boards receive precinct-by-precinct results and other information from county election officials, and they affirm that the aggregate outcome accurately sums up the underlying data.
County reports are submitted to the secretary of state, who is responsible for certifying the results for all elections that cross county lines, such as for state officers, U.S. House and Senate, relevant state legislative offices, and ballot initiatives. This state-level certification must be completed by the fourth Monday following the election.
7.b. Certifying results is “ministerial,” a required function, not an exercise of investigation or judgment.
A court can compel certification if necessary. Arizona laws, procedures, and court precedents make clear that certification is not optional or discretionary. For example, the Arizona Election Procedures Manual states that the county boards of supervisors have a “non-discretionary duty to canvass” and have “no authority to change vote totals, reject the election results, or delay certifying the results.”
If a county board of supervisors or the secretary of state were to refuse to certify, a court can mandate certification be completed, relying on a writ of mandamus, which compels government officials to comply with the law and is an effective tool for addressing certification refusal.
County boards and the secretary of state can raise clerical questions during certification, such as whether results have been provided from all jurisdictions, but questions and concerns about the accuracy of the results prepared by election officials are addressed by other means. (See 7.d.)
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CONTEXT: Certification Processes Similar to Congressional Validation of the Presidential Election
The final counting of Electoral votes in Congress during the Presidential election follows the same logic. (See ECRA section below.) Members of Congress can object to electoral votes only on extremely narrow grounds, such as if an elector voted to elect a president and vice president of the same state, which is not permitted by the Constitution.
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7.c. Some individuals responsible for certification in Arizona have refused to certify results. All were resolved.
In previous elections, some members of county boards of supervisors in Arizona initially refused to certify results or voted to delay certification. All these instances were resolved, with members eventually voting to certify. In one case, state election officials filed legal actions that led to a court mandating that the board members certify the results.
Across the county in recent years, each instance of refusal to certify was resolved by either the courts compelling certification, the refuser changing their vote, or the refuser being outvoted on the certifying body. Election results were not affected, nor were post-election time-frames significantly delayed. However, these types of conflicts can create baseless doubts about elections among voters, and they can undermine faith that officials will adhere to the law in the face of partisan concerns and pressures.
7.d. Arizona law provides other, better-suited means to address challenges and concerns about the accuracy of results.
Candidates and political parties have the right to challenge election results in court after county and state certification. These challenges are managed by courts, institutions expressly designed for the task of hearing evidence and rendering judgment. Arizona law also provides for audits and recounts, which can identify potential problems with the accuracy of results. (See Pillar 3 for information on legal challenges to election results.)
Strictly speaking, therefore, until any recounts and court challenges are completed, the results certified by the county boards and secretary of state may be subject to change. It is rare, however, for an election outcome to change after certification.
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CONTEXT: Certification in U.S. Different from Other Democracies
Election certification is a feature of U.S. elections that is highly unusual from an international perspective. A recent study of 12 major democracies found that none has a separate certification step in their election process. In fact, none has the word “certification” (or its equivalent) in their election laws at all. Instead, election administrators announce the results, courts hear any challenges, and court decisions are final. Also, very few countries, involve political parties in the results process. In the US, by contrast, most of the individuals involved in certification at the state and local levels are either party members elected in partisan elections or are nominated by parties to election boards.
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QUESTION 8: What's changed since 2020 about how Congress concludes the presidential election process?
8.a. In 2022, Congress passed the bipartisan Electoral Count Reform Act (ECRA), replacing an outdated law from 1887.
The new federal law addresses vulnerabilities in the presidential election process that were exposed by events following the 2020 election. ECRA clarified several procedures that had been ambiguous under federal law, including that the Vice President’s role in counting electoral votes is “solely ministerial.” Because the presidential election is administered by the states, ECRA also impacted aspects of state law (described below).
8.b. ECRA aims to prevent unsanctioned electors and related problems with presidential elections.
Under ECRA, the governor must issue a state’s Certificate of Ascertainment of Appointment of Electors, unless state law explicitly delegates that duty to another executive official. ECRA also specifies that each certificate must contain:
Then, when those electors hold their official meeting, they sign and submit a different certificate of votes delineating the electoral college votes for President and Vice President.
In addition to these federal requirements, 33 states including Arizona have passed laws prohibiting unsanctioned or “faithless” electors in the presidential election process.
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CONTEXT: 2020 “fake electors” highlighted the need for ECRA
In 2020, after it became clear that former President Donald Trump’s multiple lawsuits contesting the election results lacked evidentiary merit to alter the outcome, he and allies assembled their own slates of presidential electors in seven states where Trump did not win. Those unsanctioned electors met the same day as the legitimate electors, cast votes for Trump, and submitted to Congress competing Certificates of Ascertainment. President Trump began a pressure campaign to urge then-Vice President Mike Pence to discard the actual results from those seven states, and instead accept the fraudulent ones during the January 6, 2021 vote counting hearing. Had the Vice President done so, and had enough members of Congress gone along, President Joe Biden would have fallen short of the 270-vote Electoral College majority.
__________
8.c. ECRA clarifies the timeline for the presidential post-election process, with implications for states.
This timeline includes a new mandatory deadline for issuing the Certificate of Ascertainment, a new deadline for court intervention, and an updated date for the electors to meet and cast their votes. As a result, many intermediate state deadlines (such as vote counting, recounts, and audits) may need to be updated to comply with the new mandatory deadlines. Some states including Arizona have updated their laws to reflect this timeline.
8.d. Legislatures cannot change the rules after Election Day.
ECRA requires that elections be administered according to the state laws in place prior to Election Day, including laws governing presidential electors, voting emergencies, and related provisions. Importantly, ECRA also removed language from the old law pertaining to "failed elections" that bad-faith actors relied upon to argue that federal law allowed state legislatures to step in after the election was over and to appoint their own presidential electors, potentially overturning the will of the voters.
8.e. The ECRA strengthens the role of courts.
The new law gives the courts the last word over disputed presidential results, including any needed changes to the state’s Certificate of Ascertainment. It also establishes a new three-judge federal court to resolve disputes brought by aggrieved presidential or vice-presidential candidates.
__________
CONTEXT: Do Americans Vote for the President, or the Electors?
Actually, under the somewhat convoluted provisions of the Electoral College, Americans technically vote for the electors, who in turn vote for the Presidential and Vice Presidential candidates. Most states deploy a “winner takes all” approach in which all the Electoral College votes are awarded to the ticket that won the popular vote in that state. Two states (Maine and Nebraska) split a portion of their electoral votes by congressional district.
__________
The new federal law addresses vulnerabilities in the presidential election process that were exposed by events following the 2020 election. ECRA clarified several procedures that had been ambiguous under federal law, including that the Vice President’s role in counting electoral votes is “solely ministerial.” Because the presidential election is administered by the states, ECRA also impacted aspects of state law (described below).
8.b. ECRA aims to prevent unsanctioned electors and related problems with presidential elections.
Under ECRA, the governor must issue a state’s Certificate of Ascertainment of Appointment of Electors, unless state law explicitly delegates that duty to another executive official. ECRA also specifies that each certificate must contain:
- The names of the state’s electors
- The number of popular votes won in that state by each of the presidential candidates’ electors (see below, “Do Americans vote for the President, or the electors?”)
- Authenticity elements, such as the seal of the State and at least one security feature
Then, when those electors hold their official meeting, they sign and submit a different certificate of votes delineating the electoral college votes for President and Vice President.
In addition to these federal requirements, 33 states including Arizona have passed laws prohibiting unsanctioned or “faithless” electors in the presidential election process.
__________
CONTEXT: 2020 “fake electors” highlighted the need for ECRA
In 2020, after it became clear that former President Donald Trump’s multiple lawsuits contesting the election results lacked evidentiary merit to alter the outcome, he and allies assembled their own slates of presidential electors in seven states where Trump did not win. Those unsanctioned electors met the same day as the legitimate electors, cast votes for Trump, and submitted to Congress competing Certificates of Ascertainment. President Trump began a pressure campaign to urge then-Vice President Mike Pence to discard the actual results from those seven states, and instead accept the fraudulent ones during the January 6, 2021 vote counting hearing. Had the Vice President done so, and had enough members of Congress gone along, President Joe Biden would have fallen short of the 270-vote Electoral College majority.
__________
8.c. ECRA clarifies the timeline for the presidential post-election process, with implications for states.
This timeline includes a new mandatory deadline for issuing the Certificate of Ascertainment, a new deadline for court intervention, and an updated date for the electors to meet and cast their votes. As a result, many intermediate state deadlines (such as vote counting, recounts, and audits) may need to be updated to comply with the new mandatory deadlines. Some states including Arizona have updated their laws to reflect this timeline.
8.d. Legislatures cannot change the rules after Election Day.
ECRA requires that elections be administered according to the state laws in place prior to Election Day, including laws governing presidential electors, voting emergencies, and related provisions. Importantly, ECRA also removed language from the old law pertaining to "failed elections" that bad-faith actors relied upon to argue that federal law allowed state legislatures to step in after the election was over and to appoint their own presidential electors, potentially overturning the will of the voters.
8.e. The ECRA strengthens the role of courts.
The new law gives the courts the last word over disputed presidential results, including any needed changes to the state’s Certificate of Ascertainment. It also establishes a new three-judge federal court to resolve disputes brought by aggrieved presidential or vice-presidential candidates.
__________
CONTEXT: Do Americans Vote for the President, or the Electors?
Actually, under the somewhat convoluted provisions of the Electoral College, Americans technically vote for the electors, who in turn vote for the Presidential and Vice Presidential candidates. Most states deploy a “winner takes all” approach in which all the Electoral College votes are awarded to the ticket that won the popular vote in that state. Two states (Maine and Nebraska) split a portion of their electoral votes by congressional district.
__________
PILLAR 3: Judicial Review
No institution is better suited to consider evidence and render judgment than the judicial system; this is why the rule of law in election is anchored in recourse to the courts. Many countries give courts responsibility for confirming results of all elections, not just contested ones, and some countries have election tribunals solely dedicated to this task. At a minimum, all democracies allow some level of judicial recourse to challenge potentially unlawful behavior that may have impacted election results.
For a long time, the United States didn’t measure up to that standard. Historically, the role of courts in policing the electoral arena was inconsistent and contested at best. As a result, some egregious election misconduct was allowed to stand.
Fortunately, this era – when the protection of courts sometimes stopped at the polling station door – has largely come to an end. State and federal courts now provide a critical check against most unlawful activities that could impact results. But our political culture hasn’t fully caught up. Overviews of election procedures usually don’t include judicial review as a step in the process, when, arguably it provides one of the most important reasons for acceptance and trust on all sides.
This judicial role gives competing parties and candidates the opportunity to bring challenges that ensure elections are conducted under procedures established by law. Conversely, parties and candidates that question the legitimacy of election results but fail to provide evidence to support their position should not be provided an unchecked platform for amplifying unsubstantiated claims.
For a long time, the United States didn’t measure up to that standard. Historically, the role of courts in policing the electoral arena was inconsistent and contested at best. As a result, some egregious election misconduct was allowed to stand.
Fortunately, this era – when the protection of courts sometimes stopped at the polling station door – has largely come to an end. State and federal courts now provide a critical check against most unlawful activities that could impact results. But our political culture hasn’t fully caught up. Overviews of election procedures usually don’t include judicial review as a step in the process, when, arguably it provides one of the most important reasons for acceptance and trust on all sides.
This judicial role gives competing parties and candidates the opportunity to bring challenges that ensure elections are conducted under procedures established by law. Conversely, parties and candidates that question the legitimacy of election results but fail to provide evidence to support their position should not be provided an unchecked platform for amplifying unsubstantiated claims.
QUESTION 9: What recourse do candidates or citizens have if they think election officials did something wrong?
9.a. The only way for a candidate or individual citizen in Arizona to challenge an election is to contest the election in the court system.
This process is different from automatic recounts. Automatic recounts are provided by Arizona law and no individual can request one.
9.b. Challenges can happen in state or federal court.
State law provides explicit grounds for challengers to contest some election results and receive expedited consideration of their claims in state court. Voters and candidates may also be able to bring a broader set of claims in state or federal court. These claims may involve issues that don’t affect the outcome of the election.
People or entities challenging elections have many of the same types of rights as those bringing a lawsuit in a non-election context: They may provide evidence, present arguments, and appeal to a higher court if they lose.
This process is different from automatic recounts. Automatic recounts are provided by Arizona law and no individual can request one.
9.b. Challenges can happen in state or federal court.
State law provides explicit grounds for challengers to contest some election results and receive expedited consideration of their claims in state court. Voters and candidates may also be able to bring a broader set of claims in state or federal court. These claims may involve issues that don’t affect the outcome of the election.
People or entities challenging elections have many of the same types of rights as those bringing a lawsuit in a non-election context: They may provide evidence, present arguments, and appeal to a higher court if they lose.
Question 10: What’s required of plaintiffs and what can journalists expect in an election challenge?
10.a. Plaintiffs must be able to show they have standing.
The person bringing the lawsuit must have standing. The source of this requirement—and what plaintiffs must show to meet it—may vary between federal and state court. But either way, the plaintiff must show a concrete interest in the outcome. For example, a voter or elected official from one state will not have standing to challenge the result in a different state.
10.b. To utilize Arizona’s expedited contest process, plaintiffs must make specific accusations of wrongdoing and work within a narrow timeline.
Elections can be contested in Arizona courts on the following grounds:
10.c. Other challenges in state or federal court may include a broader set of allegations and races.
Challenges do not always focus on disputing the vote count or challenging election results. Some cases may be brought to ensure voters are treated equally and fairly under the law and seek remedies aside from changing the outcome of a particular race. These cases may continue well after the certification of results and the seating of elected officials.
Challenges in state or federal court alleging the violation of state or federal law may implicate multiple races, including state-legislative and federal races. Because this type of litigation can be so varied and complicated, journalists should consult with election law experts that are not involved in the case for help explaining the context and potential implications to readers.
10.d. Courts assume the election results produced through the election process are accurate until plaintiffs can prove otherwise.
This starting point is roughly analogous to the concept of “innocent until proven guilty in criminal cases. Altering the outcome of an election without proof invalidates the votes of the people.
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CONTEXT: Fraud is not fraud without proof.
Much of the discussion of flaws in recent elections is based on the theory that because fraud theoretically might have occurred, the election must be suspect. A criminal conviction based solely on what might have happened would never be tolerated, and a change in an election outcome based on similar logic would be deeply unfair to candidates and voters alike.
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10.e. The presence of wrongdoing alone is generally not enough to change results.
In an expedited election contest, the central question is whether “it appears that a person other than the contestee has the highest number of legal votes.” This question will be central to other forms of litigation over the election results as well, if a plaintiff is requesting a remedy such as annulling an election or certifying a different winner.
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CONTEXT: Do the math.
Journalists reporting on election cases, especially in the immediate aftermath of the election, should carefully examine the remedy requested by the plaintiffs and weigh whether the allegations in the complaint could plausibly justify the remedy. Consider an election that was won by 4000 votes. Even if a plaintiff proves that 1000 voters were improperly turned away from polling stations, overturning the election would be an inappropriate remedy. The judge may rule against the election authority and order process changes or individual penalties, but the results of the election will stand.
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The person bringing the lawsuit must have standing. The source of this requirement—and what plaintiffs must show to meet it—may vary between federal and state court. But either way, the plaintiff must show a concrete interest in the outcome. For example, a voter or elected official from one state will not have standing to challenge the result in a different state.
10.b. To utilize Arizona’s expedited contest process, plaintiffs must make specific accusations of wrongdoing and work within a narrow timeline.
Elections can be contested in Arizona courts on the following grounds:
- Misconduct by election officials and officers
- Candidate eligibility
- Bribery
- Illegal votes
- Erroneous count of votes
10.c. Other challenges in state or federal court may include a broader set of allegations and races.
Challenges do not always focus on disputing the vote count or challenging election results. Some cases may be brought to ensure voters are treated equally and fairly under the law and seek remedies aside from changing the outcome of a particular race. These cases may continue well after the certification of results and the seating of elected officials.
Challenges in state or federal court alleging the violation of state or federal law may implicate multiple races, including state-legislative and federal races. Because this type of litigation can be so varied and complicated, journalists should consult with election law experts that are not involved in the case for help explaining the context and potential implications to readers.
10.d. Courts assume the election results produced through the election process are accurate until plaintiffs can prove otherwise.
This starting point is roughly analogous to the concept of “innocent until proven guilty in criminal cases. Altering the outcome of an election without proof invalidates the votes of the people.
—————
CONTEXT: Fraud is not fraud without proof.
Much of the discussion of flaws in recent elections is based on the theory that because fraud theoretically might have occurred, the election must be suspect. A criminal conviction based solely on what might have happened would never be tolerated, and a change in an election outcome based on similar logic would be deeply unfair to candidates and voters alike.
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10.e. The presence of wrongdoing alone is generally not enough to change results.
In an expedited election contest, the central question is whether “it appears that a person other than the contestee has the highest number of legal votes.” This question will be central to other forms of litigation over the election results as well, if a plaintiff is requesting a remedy such as annulling an election or certifying a different winner.
- If a plaintiff brings credible and reliable evidence, and if they prove that the election result was wrong, then a court may annul the election and order a new one or may declare a different winner.
- If an accusation doesn’t involve enough votes to change the results of an election, some cases may still continue on other grounds. For example, even if an accusation of bribery involves only a small number of votes, it is still a serious accusation that, if true, may point to other remedies against the individuals involved.
- In practice, most claims against election results do not withstand scrutiny in court and very few election contests result in a decision to change the outcome. In most circumstances, including expedited election contests, the parties may appeal to a higher court.
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CONTEXT: Do the math.
Journalists reporting on election cases, especially in the immediate aftermath of the election, should carefully examine the remedy requested by the plaintiffs and weigh whether the allegations in the complaint could plausibly justify the remedy. Consider an election that was won by 4000 votes. Even if a plaintiff proves that 1000 voters were improperly turned away from polling stations, overturning the election would be an inappropriate remedy. The judge may rule against the election authority and order process changes or individual penalties, but the results of the election will stand.
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QUESTION 11: Why do some election challenges go to trial while others are dismissed by the judge?
11.a. Dismissal decisions hinge on multiple variables.
Before any case goes to trial, there are typically hearings and motions to determine if the case should be dismissed. A case may be dismissed for many reasons.
Before any case goes to trial, there are typically hearings and motions to determine if the case should be dismissed. A case may be dismissed for many reasons.
- Jurisdiction: The court may lack the power/authority to hear the claim.
- Standing: The plaintiff may lack the legal right to bring the challenge.
- Venue: The plaintiff may have filed in the wrong court.
- Statement of a claim: There may be insufficient evidence to warrant a trial, or the allegations of the plaintiff may not even describe a violation of law.
- A voter from one state attempts to challenge an election result in a different state.
- A case brought on the theory that voting equipment could have been connected to the internet but provides no evidence that the equipment ever was, in fact, connected to the internet.
- A challenge calls for overturning an election won by 10,000 votes, based on evidence of errors only affecting one polling station of 100 voters. A challenge calls for overturning an election result with a margin of 10,000 votes based on evidence of errors only affecting one polling station of 100 voters.
QUESTION 12: What are some of the challenges of reporting on election cases
12.a. The timelines are tight.
Election contests typically need to be heard and decided quickly, and this is particularly true of presidential elections. The timeline for judicial action in presidential elections is governed in substantial part by the Electoral Count Reform Act, enacted in 2022 in response to the events of January 6, 2021. Cases often involve a sequence of motions and responses that happen in quick succession and that can be challenging to explain to the media audience.
12.b. Historically, the legal system is not focused on communicating to the public.
Court rulings typically address questions of law, for example whether a particular statute applies to the circumstances of the case. This can mean that the implications of the decision for the election results are not directly stated.
Challenges that are dismissed without going to trial (discussed above) can often be interpreted as dodging the issue, as technical avoidance of a question that one side sees as a burning issue. In fact, as the examples above illustrate, dismissal often means the contestants’ claims are so far-fetched or so unsupported by evidence that an actual trial is not even needed.
Reporters must learn to “speak court” to be able to translate decisions into writing that readers can easily understand.
Election contests typically need to be heard and decided quickly, and this is particularly true of presidential elections. The timeline for judicial action in presidential elections is governed in substantial part by the Electoral Count Reform Act, enacted in 2022 in response to the events of January 6, 2021. Cases often involve a sequence of motions and responses that happen in quick succession and that can be challenging to explain to the media audience.
12.b. Historically, the legal system is not focused on communicating to the public.
Court rulings typically address questions of law, for example whether a particular statute applies to the circumstances of the case. This can mean that the implications of the decision for the election results are not directly stated.
Challenges that are dismissed without going to trial (discussed above) can often be interpreted as dodging the issue, as technical avoidance of a question that one side sees as a burning issue. In fact, as the examples above illustrate, dismissal often means the contestants’ claims are so far-fetched or so unsupported by evidence that an actual trial is not even needed.
Reporters must learn to “speak court” to be able to translate decisions into writing that readers can easily understand.
Experts
Ron Barber, former U.S. Representative, AZ
Senator Ken Bennett, former AZ Secretary of State Tearanie Chinn, All Voting is Local Ben Ginsberg, Pillars of the Community (national expert) Sarah Gonksi, Arizona State University Don Henninger, Media exec and business leader Jennifer Morrell, The Elections Group (national expert) Jackie Salit, Author of Independents Rising Kim Wyman, Bipartisan Policy Center (national expert) |
External Resources
Timeline of Arizona election procedures
Arizona Election Code
Election Procedures Manual. Secretary of State
Secretary of State election website, includes livestreams when relevant.
Certification Processes and Guardrails, provided by the Brennan Center for Justice
VOTE411, a project of the League of Women Voters that provides state-by-state information for everyday voters.
Arizona Election Code
Election Procedures Manual. Secretary of State
Secretary of State election website, includes livestreams when relevant.
Certification Processes and Guardrails, provided by the Brennan Center for Justice
VOTE411, a project of the League of Women Voters that provides state-by-state information for everyday voters.
Arizona Election Overtime Events |
|
AZ Pre-Election Briefing
Pre-election, in-state reporters with nationals invited. Focus on AZ election matters and materials.
9/30/24, 2-3 pm ET; 11 am-noon AZ time
REGISTER HERE
Pre-election, in-state reporters with nationals invited. Focus on AZ election matters and materials.
9/30/24, 2-3 pm ET; 11 am-noon AZ time
REGISTER HERE
Date |
Arizona Election Activity |
11/06/24 |
Hand count audit begins |
11/10/24 |
Last day for ID verification and curing of early ballot affidavit signatures. |
11/11/24 |
First day to canvass returns for General Election |
11/21/24 |
Last day for county boards to canvass returns |
11/22/24 |
Recounts must be initiated by the Secretary of State, within twenty-four hours after the last county canvass, by certification of the facts requiring the recount to the superior court in Maricopa County. (16-662) (NOT LISTED ON OFFICIAL CALENDAR) |
11/25/24 |
Deadline for the official canvass and the first day to issue Certificates of Election to all prevailing Federal, Statewide, and Legislative Candidates |
11/30/24 |
Deadline to file a state election contest |
12/11/24 |
Federal deadline to issue certificates of ascertainment officially appointing the state's presidential electors |
12/17/24 |
Meeting of the Electoral College |
For More Dates See the Arizona Secretary of State's Calendar.
Note: This material should be used for general informational purposes only.
It is provided as a resource to journalists and reflects ERN's research findings at the time of publication. It does not constitute legal advice, nor should it replace independent confirmation.
It is provided as a resource to journalists and reflects ERN's research findings at the time of publication. It does not constitute legal advice, nor should it replace independent confirmation.