Court asked to bar Maricopa County instructions on mistaken votes




Photo by Jim Small | Arizona Mirror

A conservative advocacy organization is asking a judge to bar Maricopa County Recorder Adrian Fontes from instructing voters in the general election that they can cross out erroneous votes and pick someone else, a policy change that raised eyebrows when the instruction was included with early ballots in last month’s primary election.

The Arizona Public Integrity Alliance argues that Fontes’s instructions violate state law and the state’s election procedures manual, a document typically drafted by the Secretary of State’s Office for every two-year election cycle and which has the force of state law. AZPIA is joined by the Arizona Attorney General’s Office, which also alleged that Fontes’s instructions to voters are illegal.

Maricopa County Superior Court Judge James Smith said on Thursday that he’ll issue a ruling as soon as possible so there’s enough time for an appeal.

Historically, elections officials have always instructed voters who made a mistake on their ballots to request a new one to use instead. But Fontes told voters otherwise for the Aug. 4 primary election, instructing them to simply cross out the name of the candidate they mistakenly voted for and to fill the bubble for a different candidate instead.

Under state law, if a voter selects multiple candidates for the same office, election officials must reject all votes for that particular race. 

And the election procedures manual instructs county recorders to “inform voters that no votes will be counted for a particular office if they overvote (vote for more candidates than permitted) and therefore the voter should contact the County Recorder to request a new ballot in the event of an overvote.”

“Defendants are required by law to instruct (Permanent Early Voting List) voters that the way to change a vote on an early ballot once a selection has been made is to request a new ballot. By providing the New Instruction to PEVL voters during the primary election, (Fontes) proceeded without or in excess of jurisdiction or legal authority,” Alexander Kolodin, an attorney for AZPIA, wrote in his complaint to the court.

However, Maricopa County Attorney Allister Adel argued that the election procedures manual allows for voters to correct such mistakes on their ballots. 

If the tabulation machines that county election officials use can’t read a ballot, it goes to an adjudication board. In response to a cease-and-desist letter that AZPIA sent to Fontes, Adel pointed out that the procedures manual states that overvotes should be counted “if voter intent can be determined.”

And Adel noted that Senate Bill 1135, a law passed by the legislature and signed by Gov. Doug Ducey in February, creates an electronic adjudication process for determining voter intent on ballots that can’t be read by ballot counting machines.

Adel wrote that the instructions in the most recent election procedures manual requiring election officials to reject overvotes “was probably an oversight,” given that it includes separate instructions to count such ballots if the voter’s intent can be determined. She argued that the new rule from the current manual supersedes the old rule that was left over from the last manual, which was from 2014.

“Under Arizona law, a subsequent statute, law and rule supersedes and abrogates any preceding, contradictory law,” Adel wrote. 

Ducey and Attorney General Mark Brnovich both approved the election procedures manual.

In an amicus brief, Joseph Kanefield, Brnovich’s chief deputy, wrote that if Fontes perceived an error or conflict in the procedures manual, it was up to him and Secretary of State Katie Hobbs toi identify and correct it.

At a hearing in Maricopa County Superior Court on Thursday, Fontes’s attorney also argued that there’s simply not enough time to print 2.5 million new copies of the instructions, which the county’s vendor printed months ago. The county must send its finalized ballot to the printer by Sept. 8, and the ballots and instructions for overseas voters must be in the mail by Sept. 19.

Attorney Joseph La Rue, who represents Fontes, told Smith that the recorder’s office contacted its vendor, Runbeck Election Services, after AZPIA filed its lawsuit and was told that there wouldn’t be enough time to re-print the instructions while also printing early ballots in time for the mailing deadlines.

“It’s a massive job to print everything that has to be printed in the short period of time we have,” La Rue said.

Further complicating the situation is that Fontes can’t simply order new instructions from a different company because government entities must select their vendors through a procurement process, which would add extra time to the process.

The judge seemed skeptical that there was no way around the procurement issue.

“Let’s say a dam is about to burst and it’s the county’s responsibility to repair that dam but the county needs money. There must be some way that the county is able to say, ‘We need to fix that dam so it doesn’t burst. Where do we get the money without having to go through a vendor or Runbeck?’” Smith said.

La Rue said he assumes that the county Board of Supervisors has some emergency powers it could use in such a situation.

Kolodin argued that the recorder’s office hasn’t taken any steps to look for a new vendor. The county’s failure to do so shouldn’t prevent the court from ordering Fontes to correct the problem.

“I think it’s appropriate for this court to start them on corrective action so that they can make those calls, so that they can make those inquiries, and so that we can get the ball rolling,” he said.

In his court filings, Kolodin argued that allowing people to cross out a candidate and change their votes increases the possibility of fraud because someone else in a ballot’s chain of custody could simply select a different candidate. Adel wrote that this would be highly unlikely because it’s difficult, if not impossible, to open a ballot envelope without damaging it.