Today, for perhaps the first time ever, the Maricopa County Elections Department will have its voting equipment tested by the Secretary of State’s Equipment Certification Advisory Committee. Neither the County nor its new equipment vendor have any experience surviving this gauntlet. There are some thorny legal issues if the equipment doesn’t pass.
According to a public notice at ADOA, the Equipment Certification Advisory Committee will host a meeting today to “Conduct [a] Test of the Democracy Suite 5.5-B Voting System” by Dominion Voting Systems, Inc. Earlier this year Maricopa County awarded a $6.1 million contract to Dominion to replace the County’s aging election equipment. Pursuant to A.R.S. § 16-442, any new election equipment used in Arizona must be certified by the U.S. Election Assistance Commission and tested/approved by the Secretary of State’s committee. Maricopa County likely has never undergone this testing because its prior equipment was probably purchased prior to the 2002 Help America Vote Act and the resulting amendment to A.R.S. § 16-442. Other vendors who have been certified for years in Arizona occasionally experience problems before the Secretary of State’s committee; Dominion will be facing this rigorous test for the first time.
Arguably it was a gamble to award a contract to an election equipment vendor that was not already certified in Arizona. In 2002, Attorney General Janel Napolitano issued an advisory opinion to Secretary of State Bayless that concluded: “the overall statutory scheme establishes a State system for approving election equipment before counties and other political subdivisions purchase the equipment.” Ariz. Op. Atty. Gen. No. I02-006 (2002) (emphasis in original). Conducting the test after a county has already purchased election equipment puts everyone in a bind. What if the vendor fails the certification test, with the equipment already purchased and the Presidential Preference Election only 4+ months away?
A common response is citation to A.R.S. § 16-442(F), which states: “The secretary of state or the governing body may provide for the experimental use of a voting system or device without a final adoption of the voting system or device, and its use at the election is as valid as if the machines had been permanently adopted.” In other words, the commonly-understood reserve parachute is to self-declare the equipment as “experimental” for the next election and buy some breathing room until the equipment is formally certified. But there are at least two problems.
First, the statute only allows experimental use “at the election.” This likely means at the next election, not all future elections. (November 2019 is the next election.) The experiment can’t last forever.
Second, it is unclear whether a county board of supervisors constitutes a “governing body” that is authorized to provide for experimental use. Prior to 2002, A.R.S. § 16-442(B) stated that “The board of supervisors of a county, or the governing body of a city or town, or the council of an agricultural improvement district may adopt for use in elections any kind of electronic voting system or vote tabulating device.” Then-existing subsection (C) had language very similar to today’s subsection (F), allowing a “governing body” to provide for experimental use. In context, boards of supervisors, city/town councils, and the boards of agricultural improvement districts were “governing bodies” who could declare experimental use. In 2002 (S.B. 1075), the Legislature relettered the statute and removed “the board of supervisors of a county” from the list of public bodies. Thus, the statute currently allows “the governing body of a city or town or the board of directors of an agricultural improvement district” to procure its own voting equipment and, in the next section, clarifies that “the governing body may provide for experimental use of a voting system.” Thus, there is at least an argument that a county is not authorized to self-declare experimental usage and bypass the Secretary of State’s committee, even for a single election.
Of course all of this might be moot by day’s end, and there is every expectation that the vendor will pass certification. But this is something to watch.