Deal OK’d for Se­nate bal­lot count

All Ariz. coun­ties can ad­just pro­ce­dures through Wed. to make sure all votes are in­cluded


PHOENIX -- Res­i­dents in all of the state’s 15 coun­ties are go­ing to get an­other few days to fix prob­lems with their early bal­lots to en­sure their votes are counted.

A deal reached Fri­day in a law­suit brought by the Repub­li­can par­ties of four coun­ties di­rects of­fi­cials in all coun­ties to fol­low the same pro­ce­dures through 5 p.m. Wed­nes­day that they had used to ver­ify ques­tioned bal­lots be­fore last Tues­day’s elec­tion.

Un­til now, only elec­tion of­fi­cials in Mari­copa, Pima, Co­conino and Apache coun­ties had al­lowed vot­ers to “cure’’ de­fects with early bal­lots af­ter the polls closed at 7 p.m. Tues­day. Cre­at­ing that op­por­tu­nity in the other 11 coun­ties means that even more votes are likely to be tal­lied.

How many are out there is un­clear.

State Elec­tions Di­rec­tor Eric Spencer said he be­lieves there may be up to 10,000 early bal­lots statewide where there now is a chance they will be counted.

Less clear is whether the ad­di­tional votes will af­fect sev­eral close races yet to be de­cided. But Brett John­son, who rep­re­sents the Repub­li­cans who filed suit, said it cre­ates a “level play­ing field,’’ where vot­ers in all coun­ties -- in­clud­ing most of the 11 which have GOP ma­jori­ties -- have the same rights.

At the heart of the le­gal fight is what hap­pens with early bal­lots.

Vot­ers are re­quired to sign the out­side of the en­ve­lope be­fore mail­ing or drop­ping it off at a polling place. When county of­fi­cials get each en­ve­lope the first thing they do is check to en­sure that the sig­na­tures match what they have on file.

If they do not, the prac­tice of all 15 coun­ties has

been to al­low vot­ers to come in to pro­vide an ex­pla­na­tion, such as whether there is an ail­ment that af­fects the per­son’s abil­ity to hold a pen.

But only in Mari­copa, Pima, Cochise and Apache coun­ties have of­fi­cials con­tin­ued the ver­i­fi­ca­tion prac­tice be­yond the 7 p.m. Tues­day dead­line when the polls close; the other coun­ties stopped those checks at that time, mean­ing any un­ver­i­fied early bal­lots still out­stand­ing at that time are not counted.

What caused con­ster­na­tion of Repub­li­cans and re­sulted in the law­suit is that the early bal­lots be­ing tal­lied from those four coun­ties have over­all been run­ning in fa­vor of Democrats — a lot.

In fact, while Repub­li­can Martha McSally was lead­ing in the race for the U.S. Se­nate af­ter the votes cast at the polls were counted, up­dated fig­ures with early bal­lot re­turns have put Demo­crat Kyrsten Sinema in the lead.

And in the race for state schools chief, the lead that Repub­li­can Frank Riggs en­joyed on elec­tion night has evap­o­rated, with Demo­crat Kathy Hoff­man now out­polling him.

The law­suit filed by John­son ar­gued that the dis­parate pro­ce­dures were an un­con­sti­tu­tional vi­o­la­tion of the equal pro­tec­tion pro­vi­sion of the U.S. Constitution. In essence, he said, Ari­zona can­not al­low one early bal­lot to be counted in one county when an early bal­lot mailed at the same time in an­other county is not.

John­son’s ef­forts to halt the post-Elec­tion Day bal­lot “cur­ing’’ in the four coun­ties drew com­plaints that the Repub­li­cans were try­ing to sup­press votes. And Colleen Con­nor, an as­sis­tant Mari­copa County at­tor­ney, said what John­son was seek­ing was im­pos­si­ble: County elec­tion of­fi­cials, af­ter ver­i­fy­ing the sig­na­tures, had re­moved the bal­lots from their en­velopes and mixed them in with oth­ers to be counted.

That left Repub­li­cans with the al­ter­na­tive of re­quir­ing the other 11 coun­ties to also give their vot­ers more op­por­tu­nity to ex­plain sig­na­ture dis­par­i­ties.

Noth­ing in the deal, how­ever, re­quires recorders through­out the state to fol­low the pro­ce­dures used in Pima and Mari­copa coun­ties where elec­tion of­fi­cials ac­tu­ally try to reach out to vot­ers with ques­tioned bal­lots.

More to the point, the agree­ment does not re­quire county recorders to do more now than they were do­ing with the early bal­lots be­fore Elec­tion Day. So if prior to Tues­day a county never tried to con­tact a voter but sim­ply al­lowed them to come in if they heard there was a prob­lem, that will suf­fice for the early bal­lots still left af­ter the elec­tion.

“We be­lieve that each county, for process pur­poses, have the abil­ity to cure in their own man­ner, in­clud­ing the out­reach to the res­i­dents,’’ John­son told Mari­copa County Su­pe­rior Court Judge Mar­garet Ma­honey.

But John­son made it clear that he be­lieves all those vot­ers whose early bal­lots were set aside due to sig­na­ture mis­matches will be con­tacted, one way or an­other.

“The (po­lit­i­cal) par­ties are able to con­tact their mem­bers through the lists that are pro­vided by the coun­ties so that we can af­fir­ma­tively get vot­ers in to mak­ing that cure,’’ he told the judge.

That pro­vides some op­por­tu­ni­ties for Repub­li­cans to sal­vage the races they thought they won on elec­tion night: The ma­jor­ity of those 11 coun­ties that now will re­visit those early bal­lots were pro­duc­ing more GOP votes.

Not ev­ery­one was pleased by the out­come.

Spencer Scharff, who rep­re­sents the League of Women Vot­ers and the Ari­zona Ad­vo­cacy Net­work, pointed out the deal cov­ers only what hap­pens right now. He said noth­ing ad­dresses what will hap­pen if there are sim­i­lar prob­lems in the 2020 elec­tion.

But Kory Langhofer, at­tor­ney for the Ari­zona Repub­li­can Party, told Ma­honey there is no le­gal au­thor­ity for her to tell coun­ties what they should be do­ing two years from now. Any­way, Langhofer said, it’s un­likely the prob­lem of dif­fer­ent pro­ce­dures in dif­fer­ent coun­ties will re­peat it­self.

“There will most cer­tainly be a leg­isla­tive so­lu­tion,’’ he said, with law­mak­ers likely to al­ter the statute to en­sure there are clear -- and con­sis­tent -- pro­vi­sions for what hap­pens in th­ese sit­u­a­tions in the fu­ture.

The deal, how­ever, does have the bless­ing of the recorders in all the coun­ties as well as the Ari­zona Demo­cratic Party that in­ter­vened in the law­suit filed by Repub­li­cans and also will get a chance to find party ad­her­ents in all the coun­ties whose early bal­lots need ver­i­fi­ca­tion.

The par­ti­san na­ture of the dis­pute spilled over onto the na­tional stage, even draw­ing the at­ten­tion of Pres­i­dent Trump.

Speak­ing to re­porters early Fri­day, the pres­i­dent ques­tioned how Repub­li­cans who were lead­ing on elec­tion night in Ari­zona and Florida now seem to be los­ing ground.

“It al­ways seems to go the way of the Democrats,’’ Trump said. “Now in Ari­zona, all of a sud­den, out of the wilder­ness, they find a lot of votes, and she — the other can­di­date — is just win­ning by a hair,’’ re­fer­ring to Sinema.

But the pres­i­dent, per­haps in­di­cat­ing he did not un­der­stand the le­gal is­sue of mis­matched sig­na­tures be­tween early bal­lot en­velopes and county records, later sent out a tweet read­ing, “Just out -- in Ari­zona, SIG­NA­TURES DON’T MATCH. Elec­toral cor­rup­tion,’’ along with a ques­tion of whether there should be a call for a new elec­tion.

Ver­mont Sen. Bernie San­ders on Fri­day claimed in his own tweet that Repub­li­cans are try­ing to “sup­press the vote.’’ And he urged elec­tion of­fi­cials here and in Florida and Ge­or­gia to “do their jobs and count ev­ery vote.’’

“They must not al­low the pres­i­dent, a bully & a patho­log­i­cal liar, or any­one else to in­tim­i­date them,’’ San­ders wrote.

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