Hobbs moves to count out-of-precinct ballots in new procedures manual

By: - September 9, 2021 8:26 am

An Arizona voter carries her ballot to a polling place to vote in the 2018 primary election in Phoenix. Photo by Ralph Freso | Getty Images

Having your entire ballot thrown out because you voted in the wrong precinct would largely become a thing of the past under a new proposal by Democratic Secretary of State Katie Hobbs — but only if she can convince Republican political rivals Gov. Doug Ducey and Attorney General Mark Brnovich to sign off on it.

And opinions vary on whether the proposed rule would even be legal without a change to state law.

In the initial draft of Hobbs’s proposed Election Procedures Manual for the 2022 election cycle, the secretary of state included a rule change that would require counties that use precinct-based polling places to count votes for any races that out-of-precinct voters are still eligible to vote in. For example, voters who cast a ballot in the wrong precinct but the correct congressional district would still have their votes counted for the congressional race, as well as statewide and other contests.

Hobbs’s proposal comes in the wake of a U.S. Supreme Court ruling that upheld Arizona’s laws on precinct-based voting. The Democratic National Committee argued that the system violated the 1965 Voting Rights Act, an argument the high court rejected. Counties aren’t required to use precincts, and most, including populous Maricopa County, use vote centers where any registered voter in that county can receive and cast the correct ballot.

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The Election Procedures Manual sets forth policies and instructions on how local elections officials are to carry out laws on various aspects of the state’s election system. The policies carry the force of state law, and are issued by secretaries of state every two years.

Currently, if registered voters attempt to cast ballots at the wrong precinct, election officials allow them to cast a provisional ballot. If they’re not eligible to vote at that precinct, the entire ballot is thrown out and none of the votes are counted. 

Under the new proposal, election workers would be required to duplicate the voters’ selections on the correct ballot. Duplication is a process in which election workers copy a voter’s choices onto a new ballot, oftentimes when tabulation machines can’t process the original ballot because it’s damaged or otherwise unreadable. Only races in which the voter isn’t eligible to cast a ballot would be disregarded under the proposed rule change.

Bo Dul, who serves as general counsel at the Secretary of State’s Office, said that state law doesn’t prohibit election officials from counting out-of-precinct votes in races that voters are eligible to vote in. It’s only the Election Procedures Manual, including the one issued by Hobbs in 2019, that prohibited it.

“The secretary, in light of the changed circumstances and our discussions with counties now, made a decision that’s within her discretion to change that policy,” Dul said. 

Dictating rules about how to handle out-of-precinct votes is “squarely within the authority” that state law grants the secretary of state when it comes to the manual, Dul said. She also said the change falls within the guidelines established in a February opinion by the Arizona Supreme Court that set limits on the scope of the manual’s authority. 

Does state law allow the change?

The opinion that state law doesn’t require an out-of-precinct voter’s entire ballot to be rejected hasn’t been shared by judges who have reviewed it in recent years. 

In the 2016 lawsuit that challenged the precinct-based voting law, the Democratic National Committee and other Democratic groups wrote, “even where the voter is otherwise fully qualified to vote for at least some of the candidates on the ballot …  or even where the voter is otherwise fully qualified to vote for all of the candidates on the ballot, their vote is not counted” if a voter casts a ballot outside of his or her precinct.

U.S. District Court Judge Douglas Rayes cited the same state law in an October 2016 ruling, writing, “Since at least 1970, Arizona has required voters to cast ballots in their assigned precinct and has enforced this system by counting only those ballots cast in the correct precinct.” 

The U.S. Supreme Court also wrote in its opinion upholding Arizona’s precinct-based voting law and its prohibition on third-party ballot collections that such ballots are counted if the a person’s address is in the correct precinct, and that, under state law, “if it turns out that the voter cast a ballot at the wrong precinct, that vote is not counted.” The state has a legitimate interest in rejecting ballots cast in the wrong precinct, the high court ruled, because it “induces compliance with the requirement that Arizonans who choose to vote in-person on election day do so at their assigned polling places.”

Murphy Hebert, a spokeswoman for Hobbs, noted that the Supreme Court ruled only on whether the the precinct-based voting law violates the Voting Rights Act, not on other aspects of that law.

State law requires provisional ballots, including those cast by people who are voting outside of their precincts, to include a sworn or attested statement that the voter lives in the precinct, among other things. Ballots “shall be verified for proper registration of the elector” being they’re counted. 

“There’s actually nothing in statute that requires that a ballot cast out of precinct be discarded in its entirety,” Dul said. “Once their eligibility to be registered and to vote is confirmed, there’s no reason for them to be completely disenfranchised based on the error of having gone to the wrong place.”

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Eric Spencer, a Republican elections attorney who served as election director under former Secretary of State Michele Reagan, said he believes Hobbs’s proposed rule runs afoul of state law. Spencer acknowledged that state law doesn’t explicitly say that ballots cast in the wrong precinct should be rejected in their entirety. 

“However, that is the natural implication of a statute that does expressly say that in a precinct-based system, a voter has to live within that precinct,” said Spencer.

The Arizona Republican Party took umbrage with the proposed change. In a comment submitted to the Secretary of State’s Office, Chairwoman Kelli Ward opposed the change, noting that the U.S. Supreme Court upheld the precinct-based voting law, 

“Having each precinct polling place create duplicate ballots for out of precinct voters, would be turning each precinct into a de-facto voting center,” Ward wrote. “This procedural change appears to modify that statute and does not adhere to legislative intent. Precinct voting is an essential component of election integrity.” 

No opposition from county recorders

Dul said the proposal has the support, or at least the acquiescence, of election officials in every county that still uses precinct-based polling places instead of vote centers. (She said those are Apache, Graham, La Paz, Mohave, Pima and Pinal counties.) Those counties all agreed that the change wouldn’t impose a significant burden on them, she said. 

“It was only contingent on that that we made the change,” Dul said.

Apache County Elections Director Angela Romero told the Arizona Mirror that she supports the proposal, while Graham County Recorder Wendy John and Pinal County Elections Director Stephanie Cooper said they were neutral.

Cooper described a hypothetical situation in which a voter showed up at the wrong precinct 10 minutes before the polls closed and only wanted to vote in the presidential election, saying that wouldn’t be a problem. However, “I still think it’s important, because we are a precinct-based county, that voters go to their correct polling place,” she said.

Nonetheless, Cooper said she doesn’t oppose the proposed change.

Hobbs must win over more than the counties if she wants the out-of-precinct voting rule included in the new manual. The attorney general and governor must sign off on the manual, meaning Hobbs must convince Brnovich and Ducey to approve the change. 

Brnovich and Hobbs have clashed repeatedly on election matters over the past several years. Brnovich is running for U.S. Senate, while Hobbs is running for governor, bringing additional political implications to the situation for both of them. 

Dul acknowledged that it could be a hard sell for Hobbs to convince Brnovich and Ducey to approve the out-of-precinct ballot rule.

“They may not have the same view. But we’re drafting this manual based on what the secretary, in her view as the chief election official for the state, believes is best for election administration and security and the rights of voters. The AG and the governor may disagree, but we’ll cross that bridge when we get there,” she said.

Ducey spokesman C.J. Karamargin said the governor will wait to comment on the manual until after Hobbs submits it to his office. She must send a final draft to Brnovich and Ducey by Oct. 1. A spokesman for Brnovich did not respond to a request for comment. Public comments on the draft manual are due by the end of Wednesday. 

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Jeremy Duda
Jeremy Duda

Associate Editor Jeremy Duda is a Phoenix native and began his career in journalism in 2003 after graduating from the University of Arizona. Prior to joining the Arizona Mirror, he worked at the Arizona Capitol Times, where he spent eight years covering the Governor's Office and two years as editor of the Yellow Sheet Report. Before that, he wrote for the Hobbs News-Sun of Hobbs, NM, and the Daily Herald of Provo, Utah. Jeremy is also the author of the history book “If This Be Treason: the American Rogues and Rebels Who Walked the Line Between Dissent and Betrayal.”

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