County Republicans, Recorders Settle Ballot Signature Dispute
PHOENIX — Residents in all of the state's 15 counties are going to get another few days to fix problems with their early ballots to ensure their votes are counted.
A deal reached Friday in a lawsuit brought by the Republican parties of four counties directs officials in all counties to follow the same procedures through 5 p.m. Wednesday that they had used to verify questioned ballots before last Tuesday's election.
Until now, only election officials in Maricopa, Pima, Coconino and Apache counties had allowed voters to "cure'' defects with early ballots after the polls closed at 7 p.m. Tuesday. Creating that opportunity in the other 11 counties means that even more votes are likely to be tallied.
How many are out there is unclear.
State Elections Director Eric Spencer said he believes there may be up to 10,000 early ballots statewide where there now is a chance they will be counted.
Less clear is whether the additional votes will affect several close races yet to be decided.
But Brett Johnson, who represents the Republicans who filed suit, said it creates a "level playing field,'' where voters in all counties — including most of the 11 which have GOP majorities — have the same rights.
At the heart of the legal fight is what happens with early ballots.
Voters are required to sign the outside of the envelope before mailing or dropping it off at a polling place. When county officials get each envelope, the first thing they do is check to ensure that the signatures match what they have on file.
If they do not match, the practice of all 15 counties has been to allow voters to come in to provide an explanation, such as whether there is an ailment that affects the person's ability to hold a pen.
But only in Maricopa, Pima, Cochise and Apache counties have officials continued the verification practice beyond the 7 p.m. Tuesday deadline when the polls close; the other counties stopped those checks at that time, meaning any unverified early ballots still outstanding at that time are not counted.
What caused consternation of Republicans and resulted in the lawsuit is that the early ballots being tallied from those four counties have overall been running in favor of Democrats — a lot.
In fact, while Republican Martha McSally was leading in the race for the U.S. Senate after the votes cast at the polls were counted, updated figures with early ballot returns have put Democrat Kyrsten Sinema in the lead. And in the race for state schools chief, the lead that Republican Frank Riggs enjoyed on election night has evaporated, with Democrat Kathy Hoffman now outpolling him.
The lawsuit filed by Johnson argued that the disparate procedures were an unconstitutional violation of the equal protection provision of the U.S. Constitution. In essence, he said, Arizona cannot allow one early ballot to be counted in one county when an early ballot mailed at the same time in another county is not.
Johnson's efforts to halt the post-Election Day ballot "curing'' in the four counties drew complaints that the Republicans were trying to suppress votes. And Colleen Connor, an assistant Maricopa County attorney, said what Johnson was seeking was impossible: County election officials, after verifying the signatures, had removed the ballots from their envelopes and mixed them in with others to be counted.
That left Republicans with the alternative of requiring the other 11 counties to also give their voters more opportunity to explain signature disparities.
Nothing in the deal, however, requires recorders throughout the state to follow the procedures used in Pima and Maricopa counties where election officials actually try to reach out to voters with questioned ballots.
More to the point, the agreement does not require county recorders to do more now than they were doing with the early ballots before Election Day. So if prior to Tuesday a county never tried to contact a voter but simply allowed them to come in if they heard there was a problem, that will suffice for the early ballots still left after the election. The settlement language Johnson read included this sentence: "'Cure'" means the same governmental acts taken prior to the general election to allow a voter to confirm their early ballot vote."
Johnson told Maricopa County Superior Court Judge Margaret Mahoney, "we believe that each county, for process purposes, have the ability to cure in their own manner, including the outreach to the residents."
But Johnson made it clear that he believes all those voters whose early ballots were set aside due to signature mismatches will be contacted, one way or another.
"The (political) parties are able to contact their members through the lists that are provided by the counties so that we can affirmatively get voters in to making that cure,'' he told the judge.
That provides some opportunities for Republicans to salvage the races they thought they won on election night: The majority of those 11 counties that now will revisit those early ballots were producing more GOP votes.
Not everyone was completely pleased by the outcome.
Spencer Scharff who represents the League of Women Voters and the Arizona Advocacy Network, pointed out the deal covers only what happens right now, in 2018. He said nothing addresses what will happen if there are similar problems in the 2020 election.
But Kory Langhofer, attorney for the Arizona Republican Party, told Mahoney there is no legal authority for her to tell counties what they should be doing two years from now. Anyway, Langhofer said, it's unlikely the problem of different procedures in different counties will repeat itself.
"There will most certainly be a legislative solution,'' he said, with lawmakers likely to alter the statute to ensure there are clear — and consistent — provisions for what happens in these situations in the future.
Spencer, the state elections director, thought the deal would push the Legislature or the next Secretary of State to make ballot curing consistent. "We tried to do it internally behind closed doors this year. We couldn’t get it done," he said. "Hopefully this is the impetus to codify this for the future."
The deal, however, does have the blessing of the recorders in all the counties as well as the Arizona Democratic Party, which intervened in the lawsuit filed by Republicans and also will get a chance to find party adherents in all the counties whose early ballots need verification.
The partisan nature of the dispute spilled over onto the national stage, even drawing the attention of President Trump.
Speaking to reporters early Friday, the president questioned how Republicans who were leading on election night in Arizona and Florida now seem to be losing ground. "It always seems to go the way of the Democrats,'' Trump said. "Now in Arizona, all of a sudden, out of the wilderness, they find a lot of votes, and she — the other candidate — is just winning by a hair,'' referring to Sinema.
But the president, perhaps indicating he did not understand the legal issue of mismatched signatures between early ballot envelopes and county records, later sent out a tweet reading, "Just out -- in Arizona, SIGNATURES DON'T MATCH. Electoral corruption,'' along with a question of whether there should be a call for a new election.
Vermont Sen. Bernie Sanders on Friday claimed in his own tweet that Republicans are trying to "suppress the vote.'' And he urged election officials here and in Florida and Georgia to "do their jobs and count every vote.''
"They must not allow the president, a bully & a pathological liar, or anyone else to intimidate them,'' Sanders wrote.