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Recount law could mess up the 2024 election calendar. AZ is scrambling to fix it

By Lauren Gilger
Published: Tuesday, January 30, 2024 - 11:16am

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There is a big problem in the calendar leading up to the 2024 election in Arizona. The issue was caused by a new law passed by Republican legislators in 2022 to widen the margin of victory that would trigger a recount after an election. 

But now, a recount in Arizona could drag on past the deadline to send results to Congress. If there’s a recount following the primary election, election officials might not be able to mail ballots to military voters overseas in time to vote in the general election. 

Election officials across the state have been sounding the alarm for months to change this, and now, it looks like lawmakers are making progress toward a solution. Jeremy Duda with Axios Phoenix has been covering the story and joined The Show with more.

An elections worker runs ballots through vote-counting machines
Drake Presto/Cronkite News
An elections worker runs ballots through vote-counting machines at the Maricopa County Tabulation and Election Center on Nov. 10, 2022.

LAUREN GILGER: Start with the law that kind of created this situation we find ourselves in now. This was in response to the 2020 election and Donald Trump’s very narrow loss to Joe Biden in Arizona that year, right?

JEREMY DUDA: That is correct. Joe Biden defeated Donald Trump by about 10,500 votes in 2020, which was a pretty narrow margin, certainly narrower than we’ve seen in a presidential race in the state in a long time, but not narrow enough for an automatic recount, which was an extremely of very, very small margin, very narrow circumstances that could trigger that.

The margin of victory had to be within 0.1% of the total votes cast, which is very narrow. And we very rarely saw these. So the legislation was passed in 2022 that expanded that to .5% of the total votes cast, which potentially could dramatically increase the number of recounts we actually see.

GILGER: So that that 10,000-plus-vote win from Joe Biden in 2020 did not trigger a recount then, but it would now under this new law?

DUDA: That it would. Yes.

GILGER: OK, so now we have this time crunch essentially in the election calendar. How big of a deal could this be if it’s not addressed?

DUDA: Potentially a big deal for a couple of reasons. I think probably the most noteworthy that hadn’t been anticipated couldn’t have been anticipated at the time this law was passed was that (in 2022) Congress passed the Electoral Count Reform Act, which is meant to kind of prevent some of the shenanigans we saw with the attempt to overturn the election in 2020.

But this sets some pretty hard and fast deadlines for when states have to certify Electoral College votes, electors, and then transmit that information to Congress. So the initial deadline, I believe, is Dec. 11 for the state executive to do some certifications.

And Arizona is at risk of missing that. We, of course, take kind of a long time compared to most states to count all of our ballots. If there are automatic recounts, that can’t be done until the ballots are completed, until there’s a statewide canvass of the results. And that puts us at risk of dragging on past that deadline, which theoretically at least would put us at risk of not having our electoral votes counted.

And then, of course, in the primary election, depending on if there are recounts, drag things that we could miss, the statutory deadline for mailing out ballots to military and other overseas voters.

GILGER: Right. If you’re still recounting, you can’t send out the general election ballots because you don’t know who’s on them yet. So lawmakers, it sounds like, are working on a deal with the governor’s office in ways. Where do negotiations stand right now?

DUDA: It’s hard to say. Things are kind of in a holding pattern. And we are coming up close to the deadline for when election officials in the counties say this has to be passed, which is early February. We don’t have kind of an exact, drop-dead deadline. But you have lawmakers, the governor’s office and county election officials all negotiating here. And there are some things that are fairly noncontroversial that would go in here, such as, moving up deadlines for proofreading ballots, potentially some stuff on having recounts begin after counties canvass their elections as opposed to when the state completes that. But there are some other issues, a handful of other issues that are really holding things up. And so far, I’m not seeing a lot of agreement between the three sides.

GILGER: And they’re going to have to agree, because this is something that would have to go through a special session, right?

DUDA: Yeah, they’ll have to pass this — the election officials believed this needs to be passed pretty much immediately. So that would probably have to be passed in a special session, and it would have to be passed with a supermajority of votes in each chamber that would allow it to go into effect immediately because election officials have to start making these plans very quickly and planning around different circumstances. This could potentially move up the primary date, which would cause a lot of things to kind of shift around.

GILGER: So where are the sticking points you mentioned? Republicans are against the idea of moving up the primary, tt sounds like?

DUDA: They had been. And we are seeing kind of more movement on that now. I know back in December, I asked Sen. Wendy Rodgers (R-Flagstaff), who chairs the Senate Elections Committee — she was not open to doing that. More recently, Senate President Warren Peterson (R-Gilbert) says he is willing to do that. So we’ve seen some movement on that.

Gov. Hobbs told me yesterday that she does not want to do that. She thinks it’s too late to move the primary, it would cause a lot of other problems.

The other potential sticking point is there’s what’s known as the curing period for early ballots, when you drop off an early ballot or a early ballot comes in kind of late close to the election. Election officials use your signature on the envelope to verify your identity. And if they don’t match, then the election officials have five business days after the election to contact voters, reach out to them, confirm that that is, in fact, a signature so their vote can be counted.

There’s talk of shortening that period — maybe reducing some days or making it five calendar days instead of five business days. And Gov. Hobbs has told me as well that she’s also opposed to that and feels like it would kind of reduce access to the ballot, make it harder for people to vote.

So we’re going to have to see what they decide. We’ve really only got a week and a half maybe. It’s hard it’s hard to say the exact deadline, but a week, week and a half seems like when they’d have to get this done.

GILGER: It’s a tight timeline to fix a tight timeline. We’re looking at a special session. They would need a supermajority to pass this. Is it going to be hard to come by that kind of agreement in this chamber that’s so divided?

DUDA: I mean, it could be. But this is something that kind of has to get done. Especially the military voters issue — nobody wants to disenfranchise military voters. Of all the voters you could potentially disenfranchise, that’s probably the one that would have the most political blowback and would probably bother the most people.

So this is something just that needs to get done. Election officials are pretty much unified in their insistence this needs to be done.

And just like a budget negotiation or any other big negotiation, it seems intractable on both sides until one day they all of a sudden have an agreement that we start moving forward. And someone’s going to have to blink here — the governor or the Legislature or probably both.

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