A Pima County judge on Monday refused a request from Republican congressional candidate Martha McSally to block the counting of some provisional ballots in her undecided 2nd Congressional District race because they lacked the signature of an election worker.
Judge James Marner made his decision after hearing from attorneys for McSally, incumbent Democratic Rep. Ron Barber, and Secretary of State Ken Bennett.
Bennett later told The Associated Press that he testified that a missing signature isn’t a fatal flaw that should keep an otherwise valid ballot from being counted.
“We want a bunch of different things to happen in the process, but when it comes down to whether a voter gets to vote, we have to focus on the most important things,” Bennett said.
It’s unknown how many ballots lack such signatures. Barber’s lawyers wrote in court papers that several hundred might be affected. About 214,043 votes were cast in the 2nd District race.
McSally leads Barber by 179 votes with about 4,000 left to count in Pima County including write-ins. An automatic recount will be triggered if the two candidates end up separated by about 200 votes or less.
With the swing district up for grabs in a Republican-leaning year, McSally’s campaign drew massive outside spending from groups favoring GOP candidates. Barber has benefited from a large amount of spending by Democratic groups.
The 2nd District race is one of only five still undecided nationally. Three House seats in California and one in New York remain too close to call.
Provisional ballots are supposed to include a form signed by a voter and an election official. Such ballots are issued when a voter is left off a roll, for example, or has been sent an early ballot but arrives at a precinct to vote in person.
The voter signature and other information is then checked by the county recorder, who validates the ballot and sends it to the election department for counting.
County recorder F. Ann Rodriguez said the reason for the challenge is that a poll worker may have forgotten to sign a form.
“The voter was in the correct polling place, properly registered to vote, entitled to vote and the voter followed all of the rules to vote,” Rodriguez said in a news release. “However, the claim is that the ballot should still be disqualified solely because the poll worker forgot to also sign the provisional ballot form.”
The restraining order request by McSally came a day after Rodriguez refused to stop verifying ballots without a worker’s signature.
McSally’s campaign issued a statement saying the court challenge was needed to ensure that only valid ballots are counted.
“We’re disappointed that a motion to shed more light on the rules being decided inside the recorder’s office was denied,” spokesman Patrick Ptak said.
Barber spokeswoman Ashley Nash-Hahn said she wasn’t surprised to see the challenge, noting a similar effort in Cochise County during McSally’s failed 2012 race against Barber.
“Martha McSally will do anything to win — even throwing out the votes of southern Arizonans,” Nash-Hahn said after the hearing.
McSally and Barber faced off in a similar battle during the 2012 election. Barber trailed for days, finally taking the lead on the Friday after Election Day. The race remained too close to call for another week.
Barber had won a special election to replace his former boss, Rep. Gabby Giffords, just months before the November 2012 election. He was with Giffords in Tucson when she was shot in the head and ultimately had to step down from her seat. Barber was hit in the thigh and cheek.
McSally is a former Air Force pilot.T