Attorney General Chris Mays wants a judge to deny the Mohave County Supervisors' motion for a court order granting immunity if they vote to end machine vote counting.

In court filings, Emma Mark, one of the attorneys for Mays' office, told Maricopa County Superior Court Judge Brad Astrosky that what Supervisor Ron Gould really wants is a judicial declaration that he has the right to vote to demand a manual vote count. As part of that, the supervisors argue they need an order preventing Mays from being subjected to “threats and intimidation” for pushing for a manual vote count.

Gould voted last year to require a manual count in the 2024 election, but after members received a letter from Mays, the board voted 3-2 to rescind the proposal, and Gould was defeated.

“We hope that you will choose not to violate the law and that we will not have to consider the legitimacy of criminal prosecution for conducting an illegal manual count,” the attorneys general wrote at the time.

But Mark told the judge it is not the court's job to advise people in advance what actions will or will not get them into legal trouble.

Whether the judge dismisses the case or agrees to investigate it more closely could have implications beyond Gould and Mohave County.

In filing the lawsuit, Gould is asking Astrosky to rule that machine counting is optional, that supervisors may make that choice, and that they “should not be subject to threats or intimidation from the Attorney General for voting to make manual count the primary initial count method.”

Before Astrosky can decide whether Mays is without standing, he will likely have to decide whether manual counting is legal, and such a ruling could allow county supervisors across the state to decide whether they can remove voting machines and go back to the way they were before the machines existed.

But Mark, representing Mays, wants to prevent the matter from getting that far. She told the judge that, at least for now, there is nothing for the judge to decide.

Mark told Astrosky that no one had made any specific threats to file criminal charges against Gould. Instead, he explained that the letter to the supervisors that Gould cited as a threat simply said that criminal penalties “may be imposed” if the board voted for a hand count. He also noted that this was the same advice the board had received from Deputy County Attorney Ryan Esplin.

Ultimately, she said, there is no reason for Astrosky to block Mays from doing anything, at least at this point.

“Plaintiffs have not disclosed any specific plans to violate the law,” Mark said.

She acknowledged that Gould had twice voted to count ballots by hand, and that he “intends to continue to do so as long as I am a member of the board until the vote is passed by a majority of the board.”

But at this point, what Gould is trying to do is “completely hypothetical,” Mark said.

“The issue has not been subject to a vote by the Board, no action has been placed on the Board's agenda, and even if it were, the outcome of that vote is entirely uncertain,” she wrote. “At most, Mr. Gould has expressed a general intent to violate the statute at some unknown time in the future.”

At the heart of the dispute is the argument by Gould's lawyer, Dennis Wilencik, that supervisors are free to move to a manual count and can do so without intimidation from Mays.

Wilenchik asked people to consider a provision in the Election Code that says, “Ballots and votes may be cast, recorded and counted by voting or marking devices and vote tabulating devices.” The key word there, Wilenchik said, is “may,” meaning “the use of vote tabulating devices is optional, not mandatory, under the statutory regime.”

Mark disagreed.

“Article 16 (state election law) does not allow a county board of supervisors to count ballots by hand without using electronic tabulating machines,” she told Astrosky.

Mark acknowledges that there are provisions in the code that allow some ballots to be counted by means other than tabulating devices.

For example, she said the law allows for manual counts if “for any reason it becomes impossible for the tabulating equipment to count all or some of the ballots.”

“But just because the statutory system recognizes that there may be circumstances in which ballots must be counted by hand, it does not allow counties to ignore the procedures for when a manual count is permitted and conduct a manual count from the get-go,” Mark said.

Mark told Astrosky that beyond what the attorney general's office says is clear law on the matter, there's another reason to dismiss Gould's lawsuit: He's essentially asking the judge to issue a declaratory judgment that says he won't get into legal trouble for voting in the future.

“If courts were to accept plaintiffs' requests to begin using declaratory judgment laws to determine whether certain conduct falls within the bounds of valid statutes, it would create a flood of potential litigation,” she said. “Litigants may seek to use declaratory judgment laws to determine the limits of criminal law in a variety of situations.”

Arizona courts have dismissed various lawsuits alleging that counting machines produced erroneous results in the 2022 election, and the Brennan Center for Justice has concluded that manual counts are prone to error.

There are also checks built into the system, including requirements to test the machines before and after an election. Arizona law also requires random hand-count audits, in which a certain number of votes in a certain number of precincts are counted by hand to see whether the totals match what the machines tallied.

But Gould said there was good reason to try to get a judge to rule that hand-counting was legal and that people would not be at risk of prosecution if they voted in a hand-counted vote.

“My concern is that voters are losing faith in the election process,” he said. Capitol Media Services In filing his lawsuit in January, Gould dismissed questions about whether candidates like Donald Trump and Kali Lake were causing a loss of trust simply because they lost elections.

“It doesn't matter why they're losing confidence in elections,” he said. “My concern is that if they lose confidence, they're going to stop voting.”

Gould's case has attracted the attention of Senate President Warren Petersen and House Speaker Ben Thomas.

In separate legal filings, the two Republican lawmakers said they were not taking a legal position on whether the law allows county supervisors to authorize manual counts.

But Thomas Basile, an attorney representing the pair, told Astrosky that the ordinance adopted by the county mandating the manual count is purely a function of the legislature — and that means Gould cannot be prosecuted, he said.

The judge has not said when he will rule.