Fontes asks judge to rule vote by video is legal

Maricopa County Recorder Adrian Fontes wants a court to bless the practice he is using that allows some people to cast a ballot by video conference.

In a lawsuit filed Friday, Fontes said state law provides for “special election boards” composed of one Republican and one Democrat to assist voters who are confined because of illness or disability. In general, they will go to where someone lives and help that person fill out the ballot.

But Fontes said the COVID-19 outbreak and public health restrictions may keep board members from entering these facilities. So he has developed — and used in the August primary — a system that uses video technology.

“Unfortunately, Gov. Doug Ducey has taken the erroneous position that providing this common-sense assistance to severely disabled voters violates Arizona law and must be suspended immediately,” attorney Mary O’Grady wrote for Fontes. And she noted that the Attorney General’s Office has expressed concerns.

So Fontes wants a judge to declare that what he’s doing is legal.

The ruling will affect more than just Maricopa County.

Secretary of State Katie Hobbs already has provided “guidance” to election officials in all 15 counties telling them that she, too, finds the practice to be legal. Whether the other counties are entitled to follow suit is dependent on what a judge concludes.

Pima County Recorder F. Ann Rodriguez said she hasn’t used videos with her special election boards until now.

But Rodriguez said everything has changed with the pandemic. And the election board members have to live with the access rules that the corporations that own these nursing homes and long-term care facilities establish.

“We’re just trying to do our job for a group of citizens that we know it’s going to impact,” she said, saying it is her intent to begin using video for voting in the upcoming election.

The litigation is designed to resolve the issue before early voting begins next month.

No one questions the use of these special election boards. Rodriguez said they go not only to nursing homes and similar facilities but even to private homes where someone needs help filling out a ballot.

Even if someone else is available at the house, she said, the person may not want others to know how she or he is voting. The board members are sworn to secrecy.

Fontes said he got about 10 requests for such help for the August primary for people who could not fill out their own ballots with conditions like multiple sclerosis and cerebral palsy. But they could not receive face-to-face assistance because of the health concerns over COVID-19.

He said he expects more such requests for the general election, with the complicating factor of limited access to care facilities.

The solution, Fontes said, was the option for a video meeting, but only if the person is physically incapable of marking a ballot and there is restricted access. It also involves showing the voter the ballot as voted.

Hobbs followed suit, issuing recommendations for how other counties can do the same thing.

All that blew up on Monday when Ducey wrote to Hobbs, accusing her of facilitating the violation of state laws and directing “these policy changes should be suspended immediately.”

Hobbs disagreed, and Ducey then sought intervention by Attorney General Mark Brnovich. Fontes decided to short-circuit all of that and take the case directly to a judge.

The way Fontes sees it, there’s nothing that radical in the proposal. He pointed out, for example, that Republican Bob Corbin, as attorney general in 1985, said it was acceptable to use videoconferences for hearings for parole hearings despite requirements for these to be held in person.

“The use of video technology to communicate from a nearby room is little different than communicating with a person through a window,” O’Grady wrote on his behalf. “And nothing in the statute spells out that the special election board and the voter will be in the same room.”

Ducey is not convinced. Press aide Patrick Ptak said the governor still considers the procedure both illegal and unnecessary.

“Our executive orders ensure that these special election boards will have access into these facilities,” he said. Ptak said that the state has provided money, personal protective devices and COVID-19 testing “to ensure these boards can do their job, and do it safely.”

Fontes said that’s not the answer.

“We figured out a way to keep not only the people in the facilities but the people who are working in the facilities and our workers more safe and administer ballots well,” he said. “What’s the problem there?”