Jones files lawsuit on CD5 ‘overvotes,’ rejected provisional ballots

Christine Jones is going back to court in the hopes of reversing Andy Biggs’ razor-thin lead over her in the increasingly litigious Republican primary for Arizona’s 5th Congressional District.

In a lawsuit filed Wednesday afternoon, Jones asked a judge to force Maricopa County elections officials inspect 577 ballots that were rejected because the voters who cast them selected more than one candidate, and allow her campaign to do the same. She also asked the judge to order the counting of more than 100 provisional ballots that were rejected because the voters went to the wrong polling place.

Jones’ attorney, Joe Kanefield, argued that some of the “overvote” ballots may have been mistakenly rejected. For example, he speculated that the machines that the county uses to count ballots may have erroneously determined that a voter chose more than one candidate in CD5 because of stray markings from felt tip pens, or because markings from the reverse side of the ballot bled through the paper.

“Such inspection is the only way voters’ true intentions may be fully known and expressed,” Kanefield wrote.

Jones trails Biggs by just 16 votes in CD5 primary, and only a handful of votes could swing the lead. County officials are nearly finished with a statutorily required recount of the race. County officials have finished counting the ballots, and the results are expected to be announced on Friday.

A judge already ordered the county to add 18 additional ballots to its count in CD5 after determining that poll workers failed to inform voters who went to the wrong polling place that their provisional ballots were unlikely to be counted. But Jones’ new lawsuit said the remainder of the 130 provisional ballots should be counted as well.

“[T]here is no principled distinction between the 18 votes and the remainder of the provisional ballots if, as the judge concluded, there was a systemic issue with poll workers not informing voters that their votes would not count,” Kanefield said.

Jones’ lawsuit aiming to add rejected provisional ballots to the mix backfired, with Biggs gaining 12 votes to Jones’ five.

Elizabeth Bartholomew, a spokeswoman for the Maricopa County Recorder’s Office, said it would be highly unusual for a campaign to be given access to overvoted ballots.

“I don’t think that has ever happened before,” she said.

Furthermore, Bartholomew said it would be extremely difficult to retrieve those 577 ballots. When an Election Day voter chooses too many or too few candidates in a race, the counting machine will immediately notify poll workers, who can give voters the option of taking a new ballot.

But no such system exists for early ballots, which make up nearly 85 percent of the 85,595 ballots cast in the CD5 primary. Bartholomew said elections officials would have to either write a new computer program for the counting machines or sort through the ballots by hand to find the 577 that were rejected because more than one candidate was selected.

Jones had previously requested that Attorney General Mark Brnovich and Secretary of State Michele Reagan investigate several “anomalies” in the CD5 balloting, including what it deemed an unusually high number of overvotes. The Biggs campaign responded that the number wasn’t abnormally high, pointing to several recent congressional races with similar, or in some cases far higher numbers of overvotes.

The lawsuit is the third time, and second this week, in which Jones has taken legal action in CD5. In addition to the initial lawsuit over the rejected provisional ballots, Jones on Tuesday asked a judge to require that her campaign be allowed to have an observer at the county’s ballot-counting center after Recorder Helen Purcell, for the second time, ejected a pro-Biggs observer appointed by the chairman of the Maricopa County Republican Party. The campaigns reached an agreement in which both sides would get an observer.

Biggs’ campaign could immediately be reached for comment.