By Howard Fischer
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PHOENIX — A Mohave County supervisor is renewing his bid to trim the legal rights of Attorney General Kris Mayes.

Ron Gould contends Mayes constitutes a “real threat” to his powers and duties to certify elections simply because he believes supervisors should be able to order a full hand count. So far he has been unable to make his arguments after a trial judge last year tossed out his lawsuit, saying he has not shown any imminent threat of prosecution.

Now Gould is asking the state Court of Appeals to issue a ruling declaring he does have a legal right to pursue the case and directing Maricopa County Superior Court Judge Bradley Astrowsky to let him present his evidence.

The new bid is getting a fight from Assistant Attorney General Alexander Samuels. He is telling the appellate court Gould’s claims are “speculative,” especially as he has “not articulated a concrete plan to violate the law” in the future.

Samuels pointed out state law requires the use of electronic tabulation of ballots, not the kind of hand count Gould has pushed for in the past and may be seeking in the future. And he noted Gould is not challenging the legality of that law but simply wants a declaration that he can’t be prosecuted for breaking it.

“The board has no statutory authority to authorize a hand count,” Samuels said. And he said that means supervisors must follow existing law — the one requiring the use of tabulation machines — “unless and until the legislature determines otherwise.”

The outcome of the legal fight could have statewide implications. Supervisors in some other counties have raised their own concerns about the accuracy of machine counting. If Gould ultimately wins, it could pave the way for them to ignore the law requiring electronic tabulation of ballots without fear of prosecution.

The fight in Mohave County dates to 2023 when the board, which is charged with certifying election returns, voted to consider a hand count for the 2024 races. That was scrapped by a 3-2 vote against the plan in August amid various practical concerns, with Gould voting to proceed with the hand count.

Three months later, board Chair Travis Lingenfelter, who had been one of the foes, put the issue back on the agenda. That gave Senate Majority Leader Sonny Borrelli, R-Lake Havasu City, a chance to argue to the board a hand count would be legal.

It was at that same meeting, however, that a letter from Mayes was read to the board. She warned the supervisors that going down that path “could result in various felonies and misdemeanor penalties.”

“We hope you will choose not to violate the law and thus that it will not be necessary to consider whether criminal prosecution is warranted for conducting an illegal hand count,” the attorney general wrote.

So the board backed down, over Gould’s objections, something he said they would not have done but for Mayes’ threats.

In his appeal, Dennis Wilenchik, Gould’s attorney, said the actions of the attorney general undermine the concept that lawmakers — including supervisors — generally have immunity from being charged for making decisions. And he told the judges that lawmakers needed to be able “to execute the functions of their office without fear of prosecutions, civil or criminal.”

But all that, Wilenchik said, will be undermined if Gould cannot get the court order he desires to block Mayes from prosecuting him if he decides in the future that a hand count is necessary.

Wilenchik said the letter was addressed to Gould as a supervisor. That, he said, “clearly supports that a ‘real threat’ exists that Ron Gould will be prosecuted under the criminal election statutes.”

“The attorney general’s threats were not idle and empty,” he told the appellate judges. And he said that is buttressed by the fact that, just eight days after sending the letter, Mayes secured the indictment of two Cochise County supervisors who were charged with felonies, including conspiring to delay the formal canvass of votes from the election over their questions about whether the machine counts were reliable.

Wilenchik also pointed out to the appellate judges Mayes has had an opportunity to disavow any intent to enforce the law about hand counts against Gould “and has refused to do so.”

But Gould faces another legal hurdle even if the appellate court sends the case back to Astrowsky. The trial judge already has said even if anything Mayes did constitutes a real threat, there may be nothing he or any other court can do about it.

“It is a violation of the separation of powers for the judicial branch to tell the executive branch what it can and cannot do concerning an act that has yet to occur,” Astrowsky wrote in his original ruling.

“The executive branch enjoys discretion when it carries out its function,” he continued. “The judicial branch cannot eliminate that discretion.”

That means only if and when Gould is charged with a crime would a court have jurisdiction to determine whether he had broken a law and whether that law is constitutional.

Tied up in all this — but not directly before the court — is what has become a perennial question of the reliability of electronic tabulation.

Arizona courts have rejected various lawsuits contending tabulation equipment produced incorrect results in the 2022 election. The Brennan Center for Justice also concluded hand counting is more likely to produce errors.

And federal courts, all the way up to the Supreme Court, rejected arguments by Kari Lake and Mark Finchem that machines used in some Arizona counties to tally ballots are so inherently unreliable that the use of them violates their constitutional rights.

Still, there can be issues. Officials in Milwaukee had to rerun about 31,000 ballots in the 2024 election because the doors of the tabulator machines were not locked and sealed as they should be.

But there are checks built into the system in Arizona, like requirements for machines to be tested before and after elections.

Arizona law also requires a random hand count audit where the ballots from a certain number of precincts are tabulated by hand to see if the totals match what the machines have counted.

Gould, however, argued there’s a reason for his desire to pursue a hand count — and get a ruling that he can’t be prosecuted for future attempts to get the supervisors to do so.

“My concern is that my constituents are losing faith in the election process,” he said.

No date has been set by the appellate court to consider the issue.