Can Pima County conduct a hand count audit of a county bond election, a Tucson city election, and an Oro Valley recall election without running afoul of A.R.S. § 16-602(B)(2)(f)?

Plain-English summary

Arizona's mandatory post-election hand count audit lives in A.R.S. § 16-602(B). It requires counties to randomly select precincts and hand-count ballots for specified categories of contested races. The list is narrow: statewide ballot measures, statewide office races, federal office races, and statewide legislative races. If a precinct has no contested race in any of those categories, § 16-602(B)(2)(f) tells the county not to conduct a § 16-602 hand count there.

In October 2015, Pima County's administrator wrote to the AG asking whether the county could conduct hand count audits of three local elections: a Pima County bond measure, Tucson city races, and an Oro Valley recall election. None of those races fell into any of § 16-602's listed categories. Did that mean the county was forbidden to hand count?

Solicitor General John R. Lopez IV (writing on behalf of AG Brnovich because the formal opinion process couldn't deliver a turnaround in time) issued an informal letter opinion. His answer: no.

The reasoning rests on the structure of § 16-602. The statute is opt-in for the audit, not opt-out for hand counting generally. Section 16-602(B) applies to "countywide primary, special, general and presidential preference election[s]," and only triggers a mandatory hand count when one of the listed race categories is on the ballot. Section 16-602(B)(2)(f) just tells the county that, where no such race exists in a precinct, it should not run a § 16-602 hand count there. It does not say the county can never hand count.

The opinion did not approve any specific procedure or address three follow-on questions: where Pima County's authority for an extra-statutory hand count comes from, what procedures it should follow, or what effect a non-§ 16-602 hand count has on the official outcome. Those would require separate analysis.

A footnote also clarifies that "ballot measure" in § 16-602(B)(2)(e) refers to statewide ballot measures only, not local measures. The Solicitor General concluded that's the better reading based on context, the use of "additional" in (B)(2)(e), and the approach in the Secretary of State's Election Procedures Manual.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

A.R.S. § 16-602(B) is Arizona's post-election integrity audit. It requires the official in charge of elections to randomly select precincts and to hand count specified categories of contested races on the ballots from those precincts. The categories listed in (B)(2)(a)-(e):

• (a) statewide ballot measures
• (b) statewide races
• (c) federal races
• (d) state legislative races
• (e) "additional ballot measures" (read by this opinion as additional statewide measures)

Subsection (B)(2)(f) addresses what happens when none of these categories is present in a particular precinct: the official should not conduct a § 16-602 hand count for that precinct in that election.

The 2015 Pima County races at issue were:

• Pima County bond election (county measure, not statewide)
• City of Tucson mayor and city council races (municipal, not statewide)
• Town of Oro Valley recall election (municipal recall, not covered)

None triggered § 16-602's mandatory audit. The county wanted to conduct hand counts anyway, presumably as a transparency measure. The Solicitor General read the statute as not foreclosing that. § 16-602 is a mandate for what to do when its triggers fire, not a prohibition on additional hand counts.

The opinion was deliberately narrow. It did not address:

• The legal source of Pima County's authority to conduct an extra-statutory audit (could come from county code, charter, or general election authority)
• The procedures a non-§ 16-602 hand count should follow (the statute's procedures are tied to its specific framework)
• Whether such a hand count affects the official certification of the election (probably not, but unaddressed)

Common questions

Q: Why is this an informal letter opinion instead of a formal opinion?
A: The AG's formal opinion process takes time, and Pima County had a board meeting that week. The Solicitor General delivered an informal letter so the board could consider it. Informal opinions carry persuasive weight but go through fewer review layers than formal opinions.

Q: Does this mean any Arizona county can hand count any race?
A: The opinion holds that § 16-602(B) doesn't forbid additional hand counts. It does not address whether a county has affirmative authority to conduct one, or under what procedures. Counties exploring this should consult county counsel and review their own enabling authorities.

Q: What about local ballot measures? Are they really not covered by the mandatory audit?
A: The Solicitor General reads "ballot measure" in § 16-602(B)(2)(e) as referring to statewide ballot measures only, based on the surrounding context and the use of "additional" in subsection (e). That's the same reading the Secretary of State's Election Procedures Manual takes.

Q: If a county runs an extra-statutory hand count, can it use § 16-602's procedures?
A: The opinion expressly does not answer that. The procedures in § 16-602 are tied to the statutory framework. A county doing a non-§ 16-602 audit would need to define its own procedures.

Q: Could the legislature change this?
A: The opinion notes the statute's structure as it stood in 2015. Election law changes frequently. Verify current law.

Citations and references

Statutes:

• A.R.S. § 16-602 (post-election hand count audits)
• A.R.S. § 16-452 (election procedures manual)

Other authorities:

• State of Arizona's Election Procedures Manual at 193 (2014)

Source

• Landing page: https://www.azag.gov/opinions/i15-009-r15-021
• Original PDF: https://www.azag.gov/sites/default/files/2025-06/I15-009.pdf

Original opinion text

October 19, 2015

C.H. Huckelberry

County Administrator

Pima County Governmental Center

130 W. Congress, Floor 10

Tucson, AZ 85701-1317

Re: I15-009 (R15-021)

Dear Mr. Huckelberry,

You requested a formal opinion from this Office, asking whether it would violate A.R.S. § 16-602(B)(2)(f) to conduct a hand count audit of Pima County's November 3, 2015 bond election, the City of Tucson's mayor and city council elections, and the Town of Oro Valley's recall election. As you may be aware, our formal opinion process necessarily involves several layers of review and is not, therefore, conducive to a speedy turnaround. We understand time is of the essence regarding your request, at least in part because the Pima County Board of Supervisors is holding its final pre-election meeting this week and would like to consider this office's opinion on the question presented. For these reasons, we are able to offer the following informal opinion letter regarding the applicability of A.R.S. § 16-602(B) to the upcoming elections.

A.R.S. § 16-602(B) applies to "countywide primary, special, general and presidential preference election[s]." (Emphasis added). Further, as part of the triggered A.R.S. § 16-602 hand count, the county official in charge of elections is instructed to count selections from the following categories of contested races: statewide ballot measures, races for statewide office, races for federal office, and races for statewide legislative office. A.R.S. § 16-602(B)(a)-(e). If there are no contested races from these categories in a particular precinct, A.R.S. § 16-602(B)(2)(f) instructs the county official in charge of elections not to conduct an A.R.S. § 16-602 hand count in that precinct. Under this analysis, none of the elections at issue would trigger a full A.R.S. § 16-602 hand count.

Further, A.R.S. § 16-602(B)(2)(f) does not affirmatively bar hand counts outside of A.R.S. § 16-602. That section only provides instructions for the county official in charge of elections on what races to count in an A.R.S. § 16-602 hand count. See A.R.S. § 16-602(B)(2) ("The races to be counted on the ballots from the precincts that were selected . . . ."); A.R.S. § 16-602(B)(2)(f) ("If there are no contested races as prescribed by this paragraph, a hand count shall not be conducted for that precinct for that election.") (emphasis added).

Please note this informal opinion letter does not address any of the following issues: (1) the source of Pima County's authority, if any, for a hand count outside the scope of A.R.S. § 16-602 for the races in question, (2) the procedures the County should use for any hand count since A.R.S. § 16-602 would not apply, and (3) what effect, if any, a hand count outside of A.R.S. § 16-602 would have on the official outcome of the election.

Sincerely,

John R. Lopez IV

Solicitor General

JRL/bg

Although it is possible to read ambiguity into whether A.R.S. § 16-602(B) intends to include only statewide ballot measures or statewide and local ballot measures, we believe the context of A.R.S. § 16-602(B) counsels in favor of the statewide ballot measure interpretation. The structure of A.R.S. § 16-602(B)(2) suggests that ballot measure in A.R.S. § 16-602(B)(2)(e) refers to the statewide ballot measures in A.R.S. § 16-602(B)(2)(a), as does the use of the modifier "additional" in A.R.S. § 16-602(B)(2)(e). This approach is also consistent with the approach taken in the Election Procedures Manual. See State of Arizona's Election Procedures Manual at 193 (2014); see also A.R.S. § 16-602(B) ("The hand count shall be conducted as prescribed by this section and in accordance with hand count procedures established by the secretary of state in the official instructions and procedures manual adopted pursuant to § 16-452.").