May 28, 2024

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The Legal System

Cochise County’s Bottom-Up Election-Denial Strategy

As millions of Americans returned to their jobs this week after the Thanksgiving holiday, several of the elected leaders of Cochise County, Arizona, opted not to do theirs.

The board of supervisors in this sparsely populated southeastern chunk of the state refuses to certify the county’s midterm-election results. Of course, nothing actually went wrong in Cochise County’s election. Instead, on Monday, the two Republican members of the Cochise County board outvoted its single Democrat to delay certification of the election, missing the deadline. By refusing to complete the process, these two officials chose instead to make a kind of generalized protest against imagined election fraud in Arizona. Their action could mean that Cochise County voters won’t have their ballots counted in the state’s final results.

Nullifying the votes of some 47,000 people for no reason is certainly a choice—and a nihilistic one at that. These two board members are engaging in a strategy of bottom-up election obstruction, apparently to clog the gears of democracy with enough sand to spread distrust throughout the entire system. Nationally, the Cochise County supervisors’ strategy may prove inconsequential, at least for now. But it’s a perfect illustration of the state of American democracy—and could be a test run of much greater consequence for 2024.

Even though prominent election deniers lost big in the November polls, in both Arizona and elsewhere, the election-denial movement is still alive, and even thriving, at the state and local level around the country. The “Stop the Steal” blueprint that Donald Trump drew up is there for anyone to follow, in the next presidential cycle and quite possibly beyond.

Before the midterms, election experts had their eyes fixed on Arizona, and in particular on Cochise County, 200 miles southeast of Phoenix. There, in the home of the Dragoon Mountains and the old frontier boomtown of Tombstone, suspicion of voting machines runs deep—so much so that county officials were demanding a full hand recount of the votes before the election had even happened. (Although all Arizona postelection audits require a small hand-counted sample, a full hand count of the votes would be illegal and, experts say, extremely prone to error.) In the end, the Arizona Supreme Court had to prevent Cochise County officials from doing it.

Ultimately, Election Day went smoothly in Cochise, and Republicans cleaned house in the county’s results: The GOP gubernatorial candidate Kari Lake and Senate hopeful Blake Masters defeated their Democratic opponents there by 18 and 11 points respectively, even though both lost overall. Still, county GOP leaders wouldn’t take yes for an answer, and they weren’t finished sowing chaos.

One of the Republican supervisors acknowledged in an interview that delaying the county’s election certification was in fact intended as a protest over the election—not in Cochise, but in Maricopa County, where Republicans claim, without evidence, that machine errors disenfranchised thousands of voters. In other words, the play here is to use local political control in one county to cast doubt on another’s larger and more politically important election—to taint the entire process by contaminating a small piece of it.

As I reported at the time, Maricopa County did have some technical problems on Election Day. Dozens of tabulation-machine printers weren’t working, despite those machines having been previously tested for accuracy. But voters weren’t turned away from polling sites. Instead, their ballots were dropped in an auxiliary box and taken to the county’s central tabulation center, to be counted along with millions of other ballots. If anyone was disenfranchising Arizonans, it was the state’s GOP leaders demanding that voters not put their ballot in the auxiliary box.

But all of that is truly beside the point. Certification is not just a formality; the process enables officials to review an election for wrongdoing. Which sometimes happens! Back in 2018, the North Carolina state election board refused to certify the results of a House race, because Republican campaign operatives had engaged in illegal ballot harvesting and tampering.

But nothing like that went down in Cochise or Maricopa Counties this year. Instead, local GOP officials are choosing to invalidate the votes of their own neighbors in order to express their displeasure with an election outcome. It’s childish. It’s wrong. It seems very illegal. And it’s probably not going to work. On Monday, Secretary of State (and now Governor-elect) Katie Hobbs filed a lawsuit against the board, tweeting that Cochise County “had a statutory duty to certify the results of the 2022 General Election by today.” The judge will hear the suit later today, and may offer a decision as early as this afternoon.

The most likely outcome is that the judge forces the board to certify the election. “Stop the Steal” zealots have tried the Cochise move before, after all. Earlier this year, commissioners in heavily Republican Otero County, New Mexico, decided not to certify their party primary-election results. That didn’t fly at the state supreme court, which ruled that the commissioners had to do their jobs. (Commissioner Couy Griffin notably still voted no, announcing that his vote was “based on my gut feeling and my own intuition, and that’s all I need.”) But if the court doesn’t force Cochise officials to change their ways, the secretary of state’s office could, in theory, tally the rest of Arizona’s votes without the county’s included. The irony is that, in a purely electoral sense, this would be great news for Democrats, potentially flipping a U.S. House seat from red to blue.

Something that became very clear in 2020 is that America’s election system relies not on spelled-out rules and regulations, but on human beings acting honestly. Before 2016, the certification process was not used as a weapon to fight back against a disappointing result. “That’s not how healthy democracies function,” Tammy Patrick, the program CEO for the election center at the National Association of Election Officials, told me. And American democracy is only as healthy as its weakest link.

What happens next in Cochise County may have little significant effect on the rest of the country. But Cochise serves as a reminder that the election-fraud myth persists. And in places where its believers have unchecked power, they will do their utmost to flex it.

The hope was that, after major midterm losses and continued rebukes from the courts, the election-denial movement would peter out—that Stop the Steal types might simply grow tired of failing. But if Trump is a viable candidate for president in 2024, you can expect him to sing from the same songbook he used in 2016 and 2020. Other candidates will amplify those lies, too, if they can benefit from doing so. Whether election denialism will survive independently of Trump is hard to anticipate. But Republicans “have seen that while it may not be the way to gain office, it is certainly the way to drive donations and fundraising and elevate your stature in the party,” Patrick said.

Cochise is a useful stress test for America’s electoral system “in terms of demonstrating the continued dangers to our democracy”—and what can be done about them, Rick Hasen, the director of the Safeguarding Democracy Project at UCLA, told me. Congress should pass reforms to the Electoral Count Act, Hasen said. States can also try to prevent what’s happening in Cochise County from recurring in 2024. Colorado passed legislation this year clarifying its rules about certification. But state leaders are similarly well positioned to make the waters of democracy muddier. In 2021, Arizona Republicans tried and failed to pass legislation that would allow the state legislature to reject the results of an election it didn’t support. An upcoming Supreme Court decision on the authority of state legislatures in administering elections will be incredibly consequential to any future election-subversion efforts.

Over the past six years, millions of people in this country have been encouraged by political leaders on the right to see themselves as the real Americans—the nation’s true rulers—who are in danger of being cheated out of their political inheritance by voter fraud on the left. They’ve been trained to respond to electoral losses with deflection, conspiracy, and dishonesty. They don’t need Trump around to keep doing that.