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Judge rules for Fontes, Hobbs in video voting dispute

A judge said Monday that some people who vote remotely are legally entitled to use video screens to cast their ballot despite a state law that makes it illegal.

In an extensive ruling, Maricopa County Superior Court Judge Randall Warner, an appointee of former Democratic Gov. Janet Napolitano, agreed with Assistant Attorney General Michael Catlett that Arizona law clearly requires that a ballot “be delivered” to someone who is seeking the help of a “special election board.” These are panels set up in each county, consisting of one Republican and one Democrat, who go to homes, nursing homes and other facilities to help people who are unable to fill out their own ballots.

“The statute is unambiguous,” Warner wrote.

But the judge said that doesn’t end the issue.

“The county recorder has a duty — as does everyone else involved in the election process — to ensure a voter’s disability does not prevent them from voting,” he said. That includes a requirement to make “reasonable modifications.”

“If a person’s disability is such that they cannot meet with a special election board in person, then the ‘in person’ requirement must yield to federal law,” Warner wrote.

Randall Warner

Randall Warner

The practice at issue comes up when a voter cannot or will not meet with a special election board. That can range from individual concerns by someone who may have a compromised immune system to those confined to nursing homes, assisted living centers and similar facilities where access has been restricted due to COVID-19.

Instead, the policy crafted by Maricopa County Recorder Adrian Fontes — and echoed by guidelines issued by Secretary of State Katie Hobbs for other counties — has election workers use a computer tablet to “meet” with someone who is confined. That voter can use his or her own computer or a tablet furnished by the election board.

Election workers would go through the ballot line by line with voters, confirm the ballot reflects their views, and then effectively “sign” the ballot for them.

Catlett argued there is no need for video voting at these facilities, even in the face of COVID-19. He pointed out the Arizona Department of Health Services has decreed that election workers are “essential” and are permitted to enter these premises.

That argument did not impress Warner.

“The issue is not the legal impediment to in-person contract, it is the health risk,” the judge said. “Federal law does not allow Arizona to impose on a disabled voters the choice between voting and protecting their health.”

Still, the judge said, his ruling isn’t a broad license for expanded use of video screens to cast ballots.

Adrian Fontes

Adrian Fontes

“That does not mean the county recorder is free to use video voting whenever he wants or for any voter who asks,” Warner wrote. He said the law still requires that personal contact, a requirement that “only yields to federal law when necessary to allow a disabled person to vote.”

Catlett, however, argued that what’s being proposed here is not just different but also dangerous.

“It strips away the one method for voter integrity that the Arizona Legislature included in the statutory procedures,” he said.

“It may be the wave of the future,” Catlett told Warner.

“It may be a great thing,” he continued, even if there are safeguards. “But all of those considerations need to be decided by the Arizona Legislature.”

Warner dismissed that contention, saying the risk of fraud is low.

“Bipartisan special election boards are a safeguard against that,” Warner said. “Conversely, there would be irreparable harm if disabled voters are unable to vote, and it is later determined that this violated their rights under Arizona and federal disability law.”

But Monday’s ruling also was not a clear victory for Fontes.

He had asked Warner for a blanket ruling to rule his policy of how and when to allow video voting is necessarily legal. And Fontes was backed by Hobbs who put out her own guidelines for video voting that mirrored what Maricopa County had adopted.

Warner refused.

“There is no way to know in advance exactly what situations will necessitate a video interaction,” the judge said. More to the point, Warner said he can’t determine when video voting is legal and when it is not without having a specific case in front of him.

“The court cannot issue declaratory relief approving the policy in advance of its application,” the judge said.

During arguments earlier in the day, Catlett even suggested that Fontes and Hobbs actually have a broader goal in mind than helping a handful of voters who need this kind of assistance.

“It’s fairly clear that they contemplate 100% virtual voting,” he told Warner, saying that Fontes plans to use FaceTime to allow people to vote online, “which is completely insecure.”

Catlett complained that those guidelines are far too broad, allowing for “full video voting” if someone is unable to mark a ballot.

“There’s no connection that has to be because of illness or injury or physical limitation or qualifying disability under the ADA or under the federal law,” he said. “There’s any number of reasons why somebody may be unable to mark their ballot.”

In fact, he said, the guidelines even allow for video voting for people who are “uncomfortable” with face-to-face voting due to COVID-19.

“The way their policies are written, if you forgot to request a mail-in ballot, you’re afraid to go to the polls in person due to COVID, you would qualify to take advantage of this procedure,” Catlett said.

Attorney Joshua Bendor, representing Fontes, told Warner that Catlett was raising issues that did not exist in a bid to quash all forms of video voting.

“This case is about the recorder’s attempt, using a very targeted policy, to ensure the disabled people in Maricopa County who are physically unable to mark their own ballots due to disability can vote in the election this year,” he said.



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