Judge To Decide Whether Provisional Ballots Cast At Wrong Polling Place Should Count

By Jude Joffe-Block
Published: Monday, September 5, 2016 - 10:00am
Updated: Monday, September 5, 2016 - 10:02am

A federal judge in Phoenix is deciding whether in the upcoming election the state must count provisional ballots differently than in the past.

Under the federal Help America Vote Act, if a voter shows up at a polling place to vote, but their name is not on the list, poll workers must offer that voter a provisional ballot.

In Arizona, during elections that require voters to vote in an assigned precinct, a state law prevents ballots cast in the wrong precinct from being counted. Even if a voter goes to a polling sites a few blocks away from their assigned one, the ballot will be disqualified.

In the 2012 presidential election, almost 11,000 provisional ballots in Arizona were tossed because the voter cast the ballot at the wrong precinct.

“In other words, the state of Arizona disenfranchised 11,000 Arizona citizens who properly registered to vote, took the time to vote, and presented the necessary ID to vote,” said Spencer Scharff, director of voter protection for the Arizona Democratic Party.

The Arizona Democratic Party, along with the Democratic National Committee and Democratic candidates Hillary Clinton and Senate hopeful Rep. Ann Kirkpatrick, are challenging a number of Arizona election policies in federal court —  including how the state handles provisional ballots cast in the wrong precinct.

“To deny the right to vote to even one citizen who is legally entitled to vote is simply intolerable, inexcusable and unconstitutional,” Scharff said.

On Friday U.S. District Court Judge Douglas Rayes heard oral argument over whether election officials should have to count such ballots.

Attorney Joshua Kaul for the plaintiffs argued tossing those provisional ballots violates the Voting Rights Act and disproportionately impacts minority voters. Kaul said voters are likely to be confused about where to vote because in some Arizona counties polling places frequently change, as do the model of elections. For example in March and May, Maricopa County voters could vote at any polling center, but in August and November elections they must vote at their assigned precinct location.

If a voter mistakenly votes in the wrong place, the ballot they are given to fill out could list different local races, such as for the state legislature. Plaintiffs want voters’ preferences to be counted for all the races they are eligible to vote in, and only votes on races that do not pertain to their place of residence to be disqualified.

Attorney James Driscoll-MacEachron representing state election officials argued in court on Friday that the state policy was legal and properly tallying ballots cast in the wrong location would be too burdensome.

State election director Eric Spencer told KJZZ after the hearing that processing one such ballot to figure out which races the voter was eligible to vote in could take fifteen minutes to an hour, and would involve “teams of human beings, having to copy it by hand on a new ballot.”

Spencer said that process would introduce “significant possibility of human error in that copying.” He said if election officials are required to count those provisional ballots, it could take weeks to release election results.

"They have taken an inconvenience and turned it into a constitutional violation," Spencer said of the plaintiffs' challenge.

The judge is expected to rule before the November election.

The plaintiffs filed the lawsuit after some Maricopa County voters waited hours to vote in the March presidential preference election. The suit initially sought to challenge how state election officials allocated polling site locations, but that part of the suit is expected to settle.

The suit also seeks to block a new state law that makes it a felony for anyone who is not a family member, roommate or care giver to collect and turn in someone else’s ballot.

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