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Home My WebLink AboutPackets - Council Packets (45) AGENDA ORO VALLEY TOWN COUNCIL SPECIAL SESSION October 28, 2015 ORO VALLEY COUNCIL CHAMBERS 11000 N. LA CAÑADA DRIVE SPECIAL SESSION AT OR AFTER 3:00 PM CALL TO ORDER ROLL CALL 1. DISCUSSION AND POSSIBLE APPROVAL OF A REQUEST FOR A HAND COUNT AUDIT BY PIMA COUNTY OF A RANDOMLY SELECTED ORO VALLEY RACE (MAYORAL OR COUNCILMEMBER) FOR THE NOVEMBER 3, 2015 RECALL ELECTION ADJOURNMENT POSTED: 10/27/15 at 2:00 p.m. by mrs When possible, a packet of agenda materials as listed above is available for public inspection at least 24 hours prior to the Council meeting in the office of the Town Clerk between the hours of 8:00 a.m. – 5:00p.m. The Town of Oro Valley complies with the Americans with Disabilities Act (ADA). If any person with a disability needs any type of accommodation, please notify the Town Clerk’s Office at least five days prior to the Council meeting at 229-4700. CC-1872 Item # 1. Town Council Special Session Meeting Date:10/28/2015 Requested by: Julie Bower Submitted By:Julie Bower, Town Clerk's Office Department:Town Clerk's Office Information SUBJECT: DISCUSSION AND POSSIBLE APPROVAL OF A REQUEST FOR A HAND COUNT AUDIT BY PIMA COUNTY OF A RANDOMLY SELECTED ORO VALLEY RACE (MAYORAL OR COUNCILMEMBER) FOR THE NOVEMBER 3, 2015 RECALL ELECTION RECOMMENDATION: Staff recommends denial of this request from Pima County. Legally, there are concerns as have been addressed in a confidential attorney-client memorandum sent to the Council. Based on these legal concerns, staff cannot recommend approval. EXECUTIVE SUMMARY: At a meeting on October 21st, the Pima County Board of Supervisors voted to approve a proposal to hand count randomly selected election contests for Pima County and the City of Tucson. Pima County would like to include a randomly selected election contest from the Town of Oro Valley, but would do so only if the Town approves. BACKGROUND OR DETAILED INFORMATION: A.R.S. 16-602, along with Chapter 12 of the Secretary of State's Election Procedures Manual, require that a hand count audit be conducted following each primary, special, general and presidential preference election. No more than five contested races may be hand-counted. The statute contemplates that only federal, statewide and legislative races are subject to the official hand count prescribed by A.R.S. 16-602. If there is a shortfall in any category, the statute does not contemplate the substitution of local races. If there are no contested federal, statewide or legislative races on the ballot, according to the statute, a hand count shall not be conducted for that precinct for that election. As Arizona Secretary of State Michelle Reagan stated in her memo to Pima County Administrator Chuck Huckleberry, dated October 19, 2015, "local contested races have no place in the statutorily-prescribed process for conducting a post-election hand count." FISCAL IMPACT: N/A SUGGESTED MOTION: I MOVE to approve the hand count audit for a randomly selected election contest for the Town of Oro I MOVE to approve the hand count audit for a randomly selected election contest for the Town of Oro Valley OR I MOVE to deny the hand count audit for a randomly selected election contest for the Town of Oro Valley Attachments SOS Memo re Hand Count c.B. Huckelberry MICHELE REAGAN Sec r et ar\j oj St at e St ate oj )t rizona October 19 , 2015 County Administrator, Pima County 130 W. Congress, Floor 10 Tucson, AZ 85701-1317 Re: Response to Request for Legal Opinion Regarding Hand Count of Local Elections Dear Mr. Huckelbeny: The Secretary of State received your letter dated October 6, 2015, which requested the Secretary's guidance on the permissibility of conducting a hand count audit pursuant to AR.S. § 16-602 with respect to a local election. The Secretary has concluded there is no legal prohibition on conducting a hand count of local races.1 While the results of that local hand count will be purely advisory/ and therefore have no effect on the official election results, the Secretary agrees that additional scrutiny of voting equipment is healthy for the electoral process and concurs with the Board of Supervisors' unanimous vote authorizing the hand count. Statutory Authorization for Hand Count of Local Races A.R.S. § 16-602, along with Chapter 12 of the Secretary of State's E lection Procedures Manual ("Manual"), require that a precinct hand count and early ballot audit (collectively, a "hand count") be conducted following each primary, special, general and presidential preference election. See e.g. AR.S. § 16-602(B); Manual at 189. No more than five contested races may be hand-counted. A.R.S. § 16-602(B)(2); Manual at 193. A "contested race" includes a ballot measure election, and is not limited to candidate races. See A.R.S. § 16-602(B)(2)(a) & (e) (classifying a statewide ballot measure as a "contested race"). However, the statute contemplates that only federal, statewide and legislative races are subject to the official hand count prescrib ed by AR.S. § 16-602. See A.R.S . § 16-602(B)(2)(a)- I The Secretary of State has no prosecutorial jurisdiction and therefore expresses no opinion as to the app li cabi lity of the criminal provisions in A.R.S. § 16-452(C) and § 16-1010. Enforcement is solely the province of the Arizona Attorney General and Pima County Attorney . See ErC Memo to Pima County Board of Supervisors, September 28, 2015 (requesting the County conduct "a voluntary hand count"). J The hand count "shall be conducted as prescribed by [§ 16-602] and in accordance with hand count procedures established by the Secretary of State in the official instructions and procedures manua l[.]" A.R.S. § 16-602(B). 1700 Wes t Washington Street. Floor 7 Ph oe nix. Ar izo na 85007-2808 Tele phone (602) 542-4285 Fax (6 02 ) 542-1575 www.az sos .gov 'j 'j I I 1 MICHELE REAGAN Secretary oj St ate State of Arizona (d) and (B)(5); Manual at 193-194. [fthere is a shortfall in any category, the statute does not contemplate the substitution of local races; rather, the officer in charge of elections must select "additional contested federal, statewide or legislative races" to conduct the hand count. A.R.S. § 16-602(B)(2)( e); Manual at 193, 195-196. If there are no contested federal , statewide or legislat ive races on the ballot, "a hand count shall not be conducted for that precinct for that election." A.R.S. § 16-602(B)(2)(f) (emphasis added); Manual at 193 ("If there are no contested races in any of the designated [federal, statewide or legislative] categories, no hand count will take place.") (emphasis added); see also A.R.S. § 16-602(F) (requiring the corresponding early ballot audit to encompass "the same races that are being hand counted pursuant to subsection B"). Accordingly, local contested races have no place in the statutorily-prescribed process for conducting a post-election hand count. Applicability of Existing Statutory Scheme Since A.R .S . § 16-602 excludes local races from consideration, any voluntary hand count conducted by Pima County officia ls will have no effect on the official election results. In particular, the following hand count provisions w ill havc no applicability to Pima County's intended course of action: • A .R.S. §§ 16-602(C)-(E) require successively larger hand counts to be conducted in the event of significant difference between the electronic tabulation results and hand count results in a particular race. In extreme cases, when a jurisdiction-wide hand count is required, the precinct hand count constitutes the official count for the contested race in question, in lieu of the original electronic tabulation results. See A.R.S. § 16-602(E). Since local races have no place in this statutory scheme, the electronic tabulation results shall constitute the official count in the Pima County races notwithstanding any divergences in the hand count results. • A.R.S. § 16-602(1) states that "[t]he hand counts prescribed by this section ... shall be completed before the canvassing of the election for that county." See also Manual at 190 ("The Precinct Hand Count and Early Ballot Audit ... shall be completed before the canvassing of the election for the county."). Since a local hand count is not prescribed in statute, the County need not complete this voluntary hand count prior to canvassing the election. Indeed, under no circumstances shall the canvass be delayed on account of the local hand coun t. • A.R.S. § 16-602(1) further provides that "[t]he results of those hand counts shall be provided to the Secretary of State, who shall make those results publicly available on the Secretary of State 's website." See also Manual at 191. This has no applicability and therefore Pima County need not provide local hand count results to the Secretary of State. Nor is the Secretary of State required to post these local hand count results in accordance with the statute . 1700 West Washingto n Street. Floor 7 Ph oen ix. Arizona 85007·2808 Telephone (602) 542-4285 Fax (6 02) 542·1575 wwvv.azsos.gov MICHELE REAGAN Sec r eta r y of St ate St ate of A r i z ona • A.R.S. § 16-602(1) provides that when "a hand count has been expanded to all precincts in ajurisdiction, the Secretary of State shall make available the escrowed source code for that county to the Superior CourtL] [who] shall appoint a special master to review the computer software ... [and] issue a public repOlt to the court[.]" Here, in the event that Pima County's voluntary local hand count extends to all precincts, the special master provision will not be triggered. • Pages 202-203 of the Manual require that hand count results be aggregated on the Hand Count Cumulative Sheet. See also Manual at 371-372 (sample "Aggregate -Precinct Hand Count Report" and "Aggregate -Early Ballot Audit"). The County must also prepare a "Hand Count I Early Ballot Audit Report" in the specified format. See Manual at 373. Collectively, these reports document the official results from the hand count process. Since Pima County's proposed local hand count is purely advisory, the County should not include the local hand count results in these reports. Propriety of Conducting the Local Hand Count Notwithstanding the legal restrictions triggered by Pima County 's proposal, the Secretary of State encourages this voluntary exercise and .believes that expanded hand counts represent good public policy4 Indeed, the Secretary recognizes that Pima County-along with the Election Integrity Commission and members of the general public-merely seek to improve the electoral process by ensuring the voting equipment is accurate and secure. This is especially impOltant in light of the fact Pima County is using new central count equipment this election. The Secretary strongly encourages such efforts, and trusts that Pima County voters will be reassured through this process. Very truly yours, /' Err? Sg;n er / Sta~je~tion Director t / ~nzona Secretary of State Michele Reagan /espencer@azsos.gov / 602.542.8683 / cc: James Driscoll-MacEachron As s istant Attorney General 4 The Secretary of State assumes that any additional costs for the proposed local hand count will be borne by its proponents. 1700 Wes t Was hington Street. Floor 7 Phoe nix. Arizona 85007-2808 Telep hone (602) 542-4285 Fax (6 02 ) 542-1575 \,;,rww.azs os.gov