Post Misrepresents Legal Power of Arizona Resolution on Electronic Voting Machines

Quick Take

The Republican majority leader of the Arizona Senate informed county election officials that a Senate resolution essentially bars electronic voting systems in the state. The state’s Democratic secretary of state and attorney general say the resolution carries no legal weight. Nonetheless, based on the resolution, a Facebook post misleadingly claimed the state “has banned electronic voting machines.”

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False claims about election fraud in Arizona have been circulating since the 2020 election. Former President Donald Trump has made a series of false claims about fraudulent ballots and “massive … voting irregularities” in the state’s 2020 election, as we’ve written before. Those claims followed investigations and audits that confirmed Joe Biden won the state’s presidential election.

Disputes over the integrity of Arizona’s election process continue, despite a lack of evidence of widespread fraud. On May 22, a judge rejected Republican Kari Lake’s suit claiming misconduct in the 2022 gubernatorial election, which she lost to Democrat Katie Hobbs.

That same day, Arizona’s Republican Senate Majority Leader Sonny Borrelli questioned the security of the state’s voting machines in a letter sent to all 15 county boards of supervisors. Borelli told the officials that a concurrent resolution passed by the legislature earlier this year essentially bans electronic voting machines. Borelli claimed the legislature has “plenary authority” to override federal law and the governor.

Conservative commentator Tim Pool picked up on Borelli’s claim in a video posted on Facebook, quoting from the letter and falsely claiming that Arizona “has banned electronic voting machines in the 2024 election.”

But a resolution is defined in the Arizona Legislative Manual as “a declaration or expression of legislative opinion, will, intent or ‘resolve’ in matters within the Legislature’s legal purview.” It is not a law and has no legal power.

Stefanie Lindquist, a professor of law and political science at Arizona State University, told us that the definition of resolution “doesn’t matter” to Borrelli, who is relying on the theory that the U.S. Constitution gives states absolute power over how elections are run.

That theory, which Borrelli referenced in his letter to election officials, is known as the independent legislature theory. It’s a reading of the Constitution advocated by some conservative lawyers that says state legislatures have the absolute power to regulate elections, with a legislature’s authority exceeding that of the governor, the courts and the electorate, Lindquist said in a phone interview with FactCheck.org.

“What [Borrelli] is arguing is that by passing the concurrent resolution, the legislature has spoken, and under this particular theory, that’s all that’s needed,” Lindquist said.

The theory hinges on the Constitution’s elections clause, which says the “times, places, and manner” of holding elections for senators and representatives “shall be prescribed in each state by the legislature thereof.” Borrelli’s letter said the clause “specifically conveys electronic voting systems (manner) are not mandated in statute to be used as a primary method for counting, tabulating, or verification.”

“The letter is relying on a theory that has never been tested, and many constitutional scholars are skeptical of its validity,” Lindquist said.

State officials have dismissed Borrelli’s letter. 

In a statement issued on May 22, Arizona Secretary of State Adrian Fontes, a Democrat, said the resolution “does not have the force of law.”

Fontes, May 22: Senate Concurrent Resolution 1037, which expresses a desire to restrict the use of certain electronic voting machines, is non-binding and does not have the force of law. Election equipment must be certified by the federal and state government by specific requirements outlined in federal and state law. That certification process is being followed in Arizona and all applicable election equipment being used in Arizona is certified. If those requirements or certification process were to be changed, it would require a regular bill to be passed by the legislature and signed by the governor — which is not the case for this non-binding resolution. We defer to the Attorney General’s office on all other legal questions.

Arizona Attorney General Kris Mayes, also a Democrat, agreed with that view. The resolution “is non-binding and has no legal impact,” a Mayes spokesman told the Arizona Mirror.

Arizona House and Senate Republicans passed Senate Concurrent Resolution 1037 in March, with voting along party lines. The resolution states that no electronic voting system can be used unless it meets certain criteria, including that it is made in the U.S. and has a publicly available source code.

The resolution contains language similar to Senate Bill 1074, which the state House and Senate passed and Hobbs vetoed on April 6.

“The election equipment required by this bill, as well as the problem it purports to solve, does not exist,” the governor said at the time.

Editor’s note: FactCheck.org is one of several organizations working with Facebook to debunk misinformation shared on social media. Our previous stories can be found here. Facebook has no control over our editorial content.

Sources

Arizona Legislative Manual. 2003.

Arizona Senate. Senate Concurrent Resolution 1037. Accessed 31 May 2023.

Lindquist, Stefanie. Foundation professor of law and political science, Sandra Day O’Connor College of Law. Phone interview with FactCheck.org. 30 May 2023.

Farley, Robert, Lori Robertson, Eugene Kiely and D’Angelo Gore. “Debunking Trump’s Latest Arizona Election Claims.” FactCheck.org. 20 Jul 2021

Lah, Kyung Eric Bradner. “Arizona Judge Rejects Kari Lake’s Final 2022 Election Lawsuit.” CNN. 23 May 2023.

Barchenger, Stacey. “At News Conference, Kari Lake Makes False Claims About Arizona Election Trial, Vows to Appeal Ruling.” Arizona Republic. 23 May 2023.

Arizona Secretary of State. Press release. “Statement from Secretary Fontes on Senate Concurrent Resolution 1037.” 22 May 2023.

MacDonald-Evoy, Jerod. “Citing ‘Plenary Powers,’ GOP Leader Claims a Non-binding Resolution Bans Arizona Election Machines.” Arizona Mirror. 22 May 2023.

Fifield, Jen. “Arizona Isn’t Banning Machines to Count Ballots. Why a Top Senator’s Declaration Means Nothing.” Votebeat. 23 May 2023.

Sievers, Caitlin. “Hobbs Vetoes Election, Abortion Bills.” Arizona Mirror. 6 April 2023.

LegiScan. Roll Call: AZ SCR1037. Accessed 1 Jun 2023.