The Arizona Democratic Party is not entitled to a real-time time access to a list of voters whose signatures on early ballot envelopes do not match what’s on file or when a voter forgets to sign entirely, a judge rule late Wednesday.
Maricopa County Superior Court Judge Scott McCoy acknowledged that the information sought is public. The judge also said that, in general, public records have to be produced “promptly.”
But McCoy said that can be overcome if the government demonstrates “specific material harm or risk to the best interests of the state.” And he said that Maricopa County Recorder Adrian Fontes has shown that being forced to produce the records the party wants meets that burden.
“The state of Arizona has a strong interest in promoting public confidence in elections,” the judge wrote. McCoy said he was convinced by arguments presented by Fontes that releasing that information prior to Election Day creates a “potential for voter confusion, frustration and suppression.”
Nothing in Wednesday’s ruling legally affects a nearly carbon-copy case filed by the Democrats against Pima County Recorder F. Ann Rodriguez set for a hearing in Tucson on Thursday before Judge Catherine Woods.
But Rodriguez is making the same arguments as Fontes, and that could help convince Woods to reach the same result.
There was no immediate response from attorneys for the party about whether they will appeal.
The lawsuits contend the party needs the information to contact early voters – or at least the ones that are registered as Democrats – to help them make the fixes to get their choices tallied.
All that is based on Arizona law, which says that ballots submitted with signatures that do not match what is on file cannot be counted. But the law does give the voters a chance to “cure” the signatures by contacting election officials within five business days after the election.
A separate law also forbids counting ballots where individuals forgot to sign the ballot envelopes at all. But they have only until 7 p.m. on Election Day to come to a county office and fix the issue.
“If ADP is not provided the records it has requested, it will be unable to assist these eligible voters, including its members and constituents, in making sure that their ballots count in the November 2020 election,” attorney John Gray wrote for the party. That, he said, will end up “frustrating its mission and also directly harming its members and constituents whose right to vote will be denied.”
Fontes urged the judge to reject the request, at least in part over practical considerations.
“It would cost us, literally, hundreds and hundreds of man-hours of work to actually create a real-time list and distribute it and monitor it the way that they’re asking for,” he said.
More problematic, said Fontes, is the potential for problems.
He noted the essence of the claim is that the information is a public record. And that, Fontes said, would mean it would have to be provided to anyone who asks.
“If I give them this information, then everybody else gets to have this information,” he said, all of which would be available while voting is still going on, he said. “And now you have chaos.”
Rodriguez said she has similar concerns about allowing people who are not election officials to start calling people and telling them their ballots may not be counted.
“It confuses the voter,” she said. “We want the voter to answer to us so we can process their ballot.”
Then there’s the chance of mischief.
“The way politics is played, I wouldn’t put it past either one of them to target the opposite (party) and say, ‘Don’t worry, you don’t have to call, your ballot’s been resolved,’” Rodriguez said, perhaps even telling people whom they call that they’re “working with recorders.”
“We want the voters to respond to our calls, not talking to you,” she explained about outsiders, including parties.
“And then they get confused and not call us,” Rodriguez continued. “And then we can’t move their ballot forward” and the vote goes uncounted.
The decision to fight the lawsuits, both said, is not political. In fact, both are Democrats.
But Fontes and Rodriguez said what the parties want is unnecessary.
“We’ve been doing it since early voting started,” Fontes said about contacting voters if the signatures on the envelope do not match what’s on file.
“That’s why we ask folks to put their phone number on there so we can have the quickest, easiest way to contact the voter to verify their identity and ensure that their ballot gets cast,” he said. “That’s our goal.”
Even if a voter forgets to sign a ballot – and forgets the phone number – Fontes said there still is outreach.
“We have records that go back years,” he said. “We have many ways to reach out.”
And Fontes said voters “deserve a good, solid line of communication from the Election Department or the Recorder’s Office specifically about an official question about their ballot.”
Fontes said he is not suggesting there is something nefarious in the request.
“I think that the Democratic Party is well intentioned,” he said. “But I don’t think it’s an appropriate request at this time.”
So when would it be appropriate?
After Election Day, Fontes said, when people still can “cure” problems with the signatures on their ballots.
“That’s when it’s appropriate to get them to help us – by ‘them,’ I mean the parties – to help us contact voters,” he said, adding at that time there’s no chance of confusing people.
“Now, all of the votes that are going to be cast have been cast,” Fontes explained. “And it’s just a matter of administering the mismatched signatures.”
That offer to provide the list beginning Nov. 4 did not satisfy the Democrats, with Gray pointing out the Election Day deadline to fix ballots that arrive in envelopes that are not signed. An offer for post-election data, he said, “effectively renders ADP’s request futile.”
Gray also said there is no intent to mislead anyone.
“Specifically, volunteers from ADP call voters, clearly identify themselves, ask if the voter has already been made aware of the need to cure a deficiency, and then provide information on steps the voter can take to cure the deficiency,” Gray wrote in his legal filings. “Volunteers work carefully to provide accurate information to voters about how they can cure their ballots.”
The issue apparently is limited to just these two counties. Testimony presented earlier this week in Maricopa County Superior Court in the case against Fontes indicated that recorders in the other 13 counties have agreed to furnish the information.
McCoy’s ruling is, in some ways, a bipartisan setback.
On Wednesday, before the ruling, Zach Henry, spokesman for the Arizona Republican Party, said it, too, will be requesting the same records. Henry said the state GOP is as interested in getting as many ballots from registered Republicans counted as possible, just as he said the Democrats are trying to do.