A conservative legal advocacy organization is appealing a judge’s ruling that Maricopa County Recorder Adrian Fontes can send instructions to 2.5 million voters instructing them to cross out a candidate’s name if they vote for the wrong person even though it likely violates state law.

The Arizona Public Integrity Alliance is asking the Arizona Court of Appeals to order Fontes, a Democrat, and the Maricopa County Recorder’s Office to print new instructions that follow state law and Arizona’s election procedures manual, which states that county recorders must instruct voters to request a new ballot if they spoil their original one.

Maricopa County Superior Court Judge James Smith ruled Sept. 4 that AZPIA is likely to succeed on the merits of its case, meaning Fontes’s instructions are probably against the law. But Smith said he won’t make Fontes print new instructions because it may be too late to print them before ballots are mailed out to overseas voters on Sept. 19, and because no one will suffer any irreparable harm if the instructions regarding ballot mistakes go out to Maricopa County voters.

At a Sept. 3 hearing, Smith focused heavily on whether there’s enough time for Runbeck Election Services, the county’s vendor that prints ballots and instructions, to print new instructions for the county’s voters. An attorney representing Fontes said Runbeck informed the recorder’s office that it won’t be able to print new instructions in time to meet statutory deadlines for mailing ballots.

Alexander Kolodin, an attorney who represents AZPIA, told the Court of Appeals that because Fontes’s ballot instruction is illegal on its face, the courts need not consider whether the plaintiffs will suffer irreparable harm or whether it would create a hardship for the county to order the printing of new instructions, which would cost about $125,000.

Kolodin also said there is still ample time for the county to find a new printer, noting that there are emergency procedures the county can use to circumvent the procurement process that government vendors normally must use to select vendors. He said AZPIA contacted a vendor that said it would be able to print new instructions in a week for the 2.5 million early ballots the county will mail.

“The instructions aren’t required to be on any particular type of paper. They don’t have to be on special ballot paper,” Kolodin said. “You could print it on a Post-It Note. You could print it on office paper. You could print it on whatever you want.”

And while the deadline to mail ballots for overseas voters is Sept. 19, Kolodin wrote that there are only a few thousand such voters, and that the printing deadline for the remaining ballots is Oct. 1. The deadline to mail ballots to people who are on the state’s Permanent Early Voting List is Oct. 7.

Furthermore, Kolodin disagrees that there will be no irreparable harm. The courts have found that there is irreparable harm when the Arizona Constitution is violated, which Kolodin said will happen in this case because the constitution guarantees the right to “free and equal” elections, which the courts have said “is implicated when votes are not properly counted.”

“The failure to count votes properly, that constitutes a violation of all Arizonans’ rights under the constitution,” Kolodin told the Arizona Mirror.

However, Smith noted in his ruling that state law doesn’t prohibit election officials from counting votes in which a voter crossed out a candidate’s name and selected another — it only prohibits election officials from instructing voters to do so. State law and the election procedures manual, which has the force of law, require such votes to be counted, as long as the voter’s intent can be determined. 

“That does not mean that election officials should encourage over-voting or ignore the (election procedures manual). But the County Defendants’ approach is understandable, and nothing suggests improper motives behind it,” Smith wrote.

Kolodin acknowledged in his appeal that the law requires such votes to be counted, but said there’s a difference between counting ballots with such mistakes and explicitly telling people they can cross out names if they vote for the wrong candidate.

“Now you’re telling a whole bunch of people to intentionally screw up. You’re saying intentionally spoil your ballot. That’s going to cause chaos on election night,” he said.

Ballots that can’t be read by the automatic tabulation machines the counties use must be reviewed by an adjudication board, which determines whether votes on those ballots should be counted.

It’s unclear how many voters crossed out candidates and voted for new ones in the primary election last month. According to Fontes’s office, Maricopa County’s adjudication board reviewed about 95,000 ballots. Of those, 12,000 that had overvotes, cross-outs, smudges or other markings were counted, though the recorder’s office doesn’t track how many had crossed out candidates.

Smith also noted that Fontes began using the new instruction for the presidential preference election in March. Conversely, Kolodin questioned why Fontes didn’t start looking for new vendors to print more instructions after the Attorney General’s Office informed him in mid-August that the mistake instruction was illegal.

Fontes and the county attorney’s office argued that the new instruction is legal because of a law added to the books this year that creates an electronic adjudication process for determining voter intent on ballots that can’t be read by ballot counting machines. A corresponding update to the election procedure manual instructs election officials to count overvotes, in which a voter chooses more than the permitted number of candidates in a race, if they can determine the voter’s intent.

The recorder’s office declined to comment on the ruling or the appeal. 

Fontes did not seek advice from legal counsel on whether it would be legal for him to instruct voters to cross out mistakes they’ve made on their ballots, according to spokeswoman Diana Solorio.