An agreement reached Tuesday at least temporarily resolves a dispute over 130 provisional ballots that could prove decisive in Arizona’s last undecided congressional race.
A lawsuit filed on behalf of a voter who supported Republican challenger Martha McSally had sought to block counting results from the 130 ballots, alleging that they were mishandled by Cochise County elections workers who did not seal them in envelopes.
However, attorneys for the voter, the county and Democratic incumbent Ron Barber reached an agreement during a recess in a Cochise County Superior Court hearing in Bisbee.
The agreement calls for the disputed ballots to be tabulated and included in the county’s overall results but also recorded separately so that a new challenge can be filed if they are decisive to the 2nd Congressional District race’s final outcome, attorneys said.
Under the agreement accepted by Judge Wallace Hoggatt, the 130 ballots’ results submitted under seal to the court and the two campaigns but not released publicly, said Deputy County Attorney David Fifer. “There’s an issue of voter privacy.”
Eric Spencer, one of the lawyers representing voter William Odle, said the agreement accomplishes the goals of counting every legal vote while also insuring the integrity of the election process.
Spencer said he previously represented McSally’s campaign but was not representing it in the ballot case.
The campaigns of Barber and McSally both said they welcomed the agreement.
McSally and Barber remained neck and neck as counting continued Tuesday. Barber was ahead by about 800 votes in results posted late Tuesday by the Arizona Secretary of State, though thousands more ballots remained to be tabulated in Cochise and Pima counties.
Barber is a former aide to former Rep. Gabrielle Giffords, a fellow Democrat who resigned earlier this year because of the wound she suffered in a January 2011 mass shooting in Tucson. Giffords picked Barber as her successor, and he won a June special election to finish the rest of the current term.
The suit filed on behalf of Odle said counting the 130 ballots would mean his vote in the congressional race and other contests “will be diluted and negated by the disputed ballots to such an extent that his chosen candidate, Martha McSally, may not be declared the winner, and because the integrity of the election will be compromised,” the suit said.
Lawyers for Barber’s campaign opposed the suit’s request for a temporary restraining order, saying that state law did not require sealing of ballots containing provisional ballots, while the Barber campaign itself called the suit an attempt by McSally’s campaign to disenfranchise voters, including those in a heavily Hispanic area.
“Throwing away the voters of southern Arizonans is wrong and unacceptable,” Barber campaign manager Jessica Floyd said in a statement.
Of the 130 disputed provisional ballots, most were cast at a precinct in the city of Douglas. The remaining ballots were cast in two precincts in or near the city of Sierra Vista. Census data indicates 82.6 of Douglas’ population is of Hispanic or Latino origin, compared with 19.4 percent for Sierra Vista and 32.6 percent for Cochise County.
McSally campaign spokesman Yancy Williams said any mishandling of ballots in a minority-dominated area reflects the quality of work by election officials, not targeting by McSally’s campaign.