New ballots add to Biggs’ narrow lead in CD5

Christine Jones’ quest to force Maricopa County to count a handful of rejected provisional ballots in Arizona’s 5^th Congressional District backfired after the latest court-ordered tally added a handful of votes to Andy Biggs’ razor-thin lead.

Maricopa County Superior Court Judge Joshua Rogers ruled on Friday morning that election officials must count 18 conditional provisional ballots cast by voters who were at the wrong polling place because poll workers did not tell them that their ballots were unlikely to actually count.

However, rather than narrowing Biggs’ nine-vote lead over Jones, the Senate president expanded his cushion to 16 votes. Of the 18 provisional ballots that county officials tallied, 12 went to Biggs, five went to Jones and one went to third-place finisher Don Stapley.

Of the 18 ballots that election officials counted on Friday, only seven were on a list of voters that Jones submitted to the court. The rest came from a list of ballots that Biggs asked the judge to rehabilitate

Adam Deguire, Biggs’ campaign consultant, said the new results came as no surprise.

“Just as we expected, our lead over Christine Jones increased after the additional eighteen ballots were counted by the County Recorder’s office,” Deguire said in a press statement. “We almost doubled our lead and now hold a 16 vote advantage, confirming that we ended the campaign with strong momentum behind us. We feel confident this margin will hold during the recount.”

Jones said she didn’t regret going to court over the rejected provisional ballots, even though the ruling cost her an additional seven votes.

“You can doubt my sincerity about this as long as you want, but the entire reason I engaged in this exercise is because we have voters who have been disenfranchised, who voted and thought they voted properly, and their votes should count, regardless of the candidate for whom they cast their votes,” Jones told the Arizona Capitol Times.

Jones held a slim lead in the CD5 GOP primary from Election Day until three days later, when one of the final batches of ballots counted by election officials eviscerated her tenuous lead and brought Biggs within striking distance of the win. In that batch, which dropped her lead from 573 votes to a mere 37, an abnormally high percentage of voters chose Rep. Justin Olson, the last-place finisher in the four-way race, while Jones’ share of the vote was unusually low compared to the other nine ballot counts released by the county.

The former GoDaddy executive said she didn’t want to speculate about what caused that statistical anomaly. But if there was some kind of mistake in that tally, she said she hopes the recount corrects it.

“I think we still can win on a recount regardless because none of this disenfranchisement conversation has dealt with the statistical anomaly that we thought happened between Tuesday night and Saturday morning,” Jones said.

The Jones campaign also sent a letter to Maricopa County Recorder Helen Purcell asking her to count not only the 18 ballots identified in the judge’s order but also the remainder of the 136 voters whose provisional ballots were rejected because they were at the wrong polling place.

“Please note that you do not need a court order to process these additional lawful votes. You should be guided by your oath and the requirements of the U.S. and Arizona Constitutions, which preserve the fundamental voting rights of every voter. However, Judge Roger’s order clearly provides you the authority you need,” Joe Kanefield, Jones’ lead attorney, wrote in the letter.

Maricopa County Elections Director Karen Osborne said only that the recorder’s office is working with its attorneys to review the request.

Absent a court order, Purcell seems unlikely to comply. After Rogers released his ruling, Purcell told reporters that she thought he had erred.

“This is going against state law. State law says you have to vote in your own precinct,” Purcell said.

The Biggs campaign interpreted the letter as a sign that Jones plans to go back to court in another attempt to challenge the CD5 results. Brian Seitchik, Jones’ campaign consultant, refused to comment on whether the campaign is planning additional legal action.

The Board of Supervisors now expects to meet on Monday to approve the canvass. Once the county’s canvass is complete, the Secretary of State’s Office will certify its own statewide canvass, then go and will go to court shortly afterward to ask a judge to order a recount in the CD5 Republican primary.

During a day-long hearing in Rogers’ court on Thursday, Jones’ attorneys repeatedly emphasized that they didn’t know how any of the people whose ballots they sought to rehabilitate had voted. In response to questioning from Kanefield, several witnesses said the Jones campaign didn’t ask how they voted, but the Biggs campaign did.

But two voters said on the witness stand that they had cast their ballots for Jones, while three others told reporters following their testimony that they had done the same. Three of those five voters were on Rogers’ list of people whose ballots must be counted.

Kanefield acknowledged that the Jones campaign focused its efforts on restoring the ballots of voters from precincts that heavily backed Jones.

Rogers first ruled on Jones’ motion to hold off on canvassing the county’s votes today, saying she failed to show a likelihood of success on her first three claims. But the judge also ruled that she could succeed on her fourth and final claim.

Jones had claimed that county officials improperly conducted the elections by refusing to allow voters who cast a provisional ballot to provide an identification within five days after the primary, by rejecting early ballots where signatures did not match the voter file, and by failing to provide voters who submitted but did not sign their early ballots the opportunity to cure the defect.

Her fourth claim, which the judge favored, is that election officials erred by rejecting provisional ballots cast in the wrong precinct when they failed to inform voters that their votes wouldn’t be counted. Several voters testified in Rogers’ courtroom on Thursday that they would have gladly gone to the correct polling place if the poll workers had informed them that their provisional ballots were unlikely to be counted.

Much of the debate in the case has centered on whether voters should have been given five days instead of three to cure ballot defects. But Rogers said the laws cited by Jones’ campaign does not support her position. He noted that secretary of state’s elections manual gives voters a five-day deadline for a general election that includes the race for a federal office, and a three-day deadline is set for any election “other” than the general.

“By its plain terms, this would include primary elections as well as general elections which do not include an election for federal office.  This conclusion is confirmed by the Manual itself,” Rogers said. As for mismatches in signatures, Rogers said Jones also failed to show that she would likely succeed. The requirement that election officers compare the signature on the envelope containing the ballot against the voter’s original registration form is not an unconstitutional burden, he said, adding, “This process is an essential procedural safeguard to prevent fraud and ballot tampering.”

But Rogers said Jones’ final claim – of ballots getting rejected after being dropped in the wrong precinct and poll workers failing to inform them that their vote wouldn’t be counted – is a different matter.

There’s no dispute over the policy that ballots cast in the wrong precinct should be rejected. Instead, the judges said, the Jones campaign is arguing that this policy has been illegally implemented when ballots were invalidated “based on poll worker error.”

This is not a “garden variety,” error, Rogers said.

The judge zeroed in on the state’s elections manual, which tells the poll workers to direct voters to the right precinct and to give them a provisional ballot if they don’t want to.

“Such a provisional vote will never be counted,” Rogers said, adding, “But there is nothing in this directive that advises poll workers of this fact.  To the contrary, these instructions in the ePollbook suggest that the voter still has a legitimate opportunity to vote, just by provisional ballot.”

The testimony in court on Thursday affirmed this, he said. Poll workers did not receive any training about his findings, he said.

“As a result, numerous voters who were either told by poll workers that their vote would count or, by silence, were misled to believe that their vote would count, were disenfranchised,” Rogers wrote. This placed a “severe” burden on voters. As such, Jones showed that she may succeed on this point, the judge said.