Arizona Democrats got a court order Thursday giving them access to a list of questioned ballots in a bid to have more of them verified even as Republicans go to court today to try to change ballot-counting procedures to help their own candidates in close races.
Maricopa County Superior Court Judge Daniel Kiley ordered County Recorder Adrian Fontes to give the party a list of those early ballots where there are signature-verification issues.
That same order also requires Fontes to produce a list of “provisional” ballots, those that are cast at the polls but are set aside because of potential problems, like the failure to have the proper identification. If they show up with the required ID within five business days, the ballots are counted; otherwise they are tossed.
With the order, Democrats will get both lists. That, in turn, enables them to find people on their own to make sure that they do contact Fontes’ office and take care of any problems to ensure their votes, presumably for Democrats, do count.
Meanwhile Brett Johnson, representing the GOP, wants to block four counties which have been giving more votes to Democrats than Republicans to stop contacting voters who turned in early ballots on Election Day but whose signatures apparently did not match what was on file in county offices.
Johnson does not dispute that election officials are free to contact voters to see if there’s an explanation, like a change in signature over time or perhaps even an illness. But he contends that process of “curing” ballots has to stop at 7 p.m. on Election Day — even for people who submitted their early ballots on time that day.
Both moves come amid efforts by Democrat Kyrsten Sinema to defeat Republican Martha McSally in the race to succeed Jeff Flake in the U.S. Senate, as well as the race between Democrat Kathy Hoffman and Republican Frank Riggs to be state schools chief.
What votes are counted from Maricopa County, along with Pima, Coconino and Apache counties, are important as all four are places where the Democrats outpoll the Republicans. More votes counted from each of these could break in favor of the Democrats.
At last count, Sinema and Hoffman had opened up narrow leads.
Central to the dispute before Mahoney later today is how early ballots are handled.
The first step is to see if the signature on the envelope matches the one they have on file. If not, most counties have procedures to contact the voter and see if they actually were the sender and if there is a reason for the disparity.
If everything checks out, the ballot is removed from the envelope and put into the stack to be counted.
In the four counties at issue, officials continue the verification process after Election Day.
By contrast, officials in the state’s other 11 counties — virtually of which have Republican voter registration edges and produced more votes for McSally and Riggs than their Democratic foes — do not contact voters when signatures do not match on ballots turned in on Election Day and do not count the votes inside.
Johnson, who represents Republican parties in the four affected counties, contends that disparity among the counties is unconstitutional.
“By arbitrarily counting and rejecting ballots from identically suited voters, defendants are systematically denying certain voters the right to vote in violation of the Equal Protection Clause,” he is arguing. And he contends there is “no statutory authorization” allowing county officials to do that after the polls close, saying the practice used in the four counties at issue “threatens to beget an extended period of confusion and uncertainty following the election.”
Johnson said the disparate decisions among county recorders on whether to try to contact voters means some people whose ballots are not counted “are suffering direct and irreparable injury.”
But attorney Colleen Connor of Maricopa County told Mahoney she should dismiss the lawsuit that was not filed until late Wednesday.
“This procedure was known prior to the election,” she said, saying if the Republicans had a problem with how those ballots were going to be handled they should have brought the issue to court earlier.
And Attorney Daniel Jurkowitz representing Pima County, said there is nothing in Arizona law requiring any verification to stop when the polls close.
“If plaintiffs want a deadline of 7 p.m. on Election Day to cure signatures on early ballots, they should seek a statute or regulation designating such,” he told the judge.
State GOP Chairman Jonathan Lines denied that the lawsuit is a bid to suppress votes from counties where the ballots were coming in more favorably for Sinema and Hoffman.
“We want all 15 counties to adhere to the same standards and timeline in fixing possible signature discrepancies on mail-in ballots,” he said in a prepared statement. “Voters have rights regardless of where they live.”
There was no immediate response from Lines to why the GOP did not file suit until the closeness of the races for U.S. Senate and state schools chief became apparent.
Mahoney may not even get a chance to decide the issue.
Connor pointed out that Johnson is alleging violations of the U.S. Constitution. And those, she said, should be heard in federal court.
If the case is transferred, that will only delay a resolution of the dispute. And that then threatens to violate a state law requiring that there be a formal canvass of election results within 20 days of the vote.