Certification of canvass of the vote today, CD 2 automatic recount to follow

On Thanksgiving Day, a federal judge in Tucson rejected the Ron Barber for Congress campaign’s request for a temporary restraining order to count an additional 133 ballots that were not counted for various reasons.

The certification of the canvass of the vote will occur today. The Secretary of State will file the request for an automatic recount with the Superior Court in Maricopa County later today. Federal judge rejects Barber lawsuit:

U.S. District Judge Cindy K. Jorgenson rejected arguments made on Wednesday, including that the rejection of the 133 ballots was the result of mistakes made by election officials in Pima and Cochise County.

“Plaintiffs have not met their burden to show pervasive error that undermines the integrity of the election,” wrote Jorgenson.

Jorgenson cited case law that, “In general, garden variety election irregularities do not violate the Due Process Clause, even if they control the outcome of the vote or election.”

Jorgenson noted that even if she allowed the ballots to be counted, it would not be sufficient to change the outcome of the election.

“The Court finds that, because the votes of the three individual voter Plaintiffs will not count if a TRO is not issued, Plaintiffs have met their burden of showing irreparable harm,” the judge wrote. “However, Plaintiff Ron Barber for Congress’ allegation of irreparable harm is speculative at this juncture. Even if all 133 votes are counted, it is undisputed that Martha McSally wins the election because she leads by a margin of 161 votes at this time.”

The Secretary of State’s office is expected to certify the election results on Monday, which will then lead to an automatic recount in CD 2.

There are two problems with the Court’s reasoning. First, if the individual plaintiffs/voters “have met their burden of showing irreparable harm” if a TRO is not issued, why then is this not enough for the Court to issue a TRO?

The answer, as I’ve explained many times, is that the right to vote is a privilege and not a fundamental constitutional right. Under current law, the state need only establish a minimal rational basis for excluding the voters’ ballots, e.g., the signature on file does not appear to match, or the voter was advised by poll workers to cast a provisional ballot in the wrong precinct rather than directed to the correct precinct. Arizona law follows the “right church, wrong pew” rule for not counting ballots cast in the wrong precinct.

Arizonans need to enact a constitutional amendment to the Arizona Constitution by citizens initiative declaring that the right to vote is a fundamental constitutional right of which a citizen shall not be deprived without due process of law.  This would raise the bar for judicial review to the strict scrutiny standard of review. It is doubtful that the individual voters in this case who were disenfranchised of their vote despite having done everything they were instructed to do would be denied a TRO under the strict scrutiny standard of judicial review.

The second error the Court makes is its assumption that counting the additional 133 votes would not make a difference in the outcome of the election. This is only true in so far as the certification of the canvass of the vote today. But this is not what the Barber campaign is concerned about. It is the margin of vote difference going into the automatic recount that is relevant. The machine recount of the vote is almost guaranteed to produce different vote totals than the canvass of the vote being certified today.

Why is this? Several reasons, including the manner in which ballots are marked; the manner in which the scanning equipment is calibrated to read the ballots for just the CD 2 race; scanner equipment or software errors; human errors, etc. It is conceivable that if the candidates are only a few votes apart that the machine recount very well could change the outcome of the vote.

Is this probable? No. History is not on the side of Congressman Ron Barber. An analysis by the AP asserts that “Barber’s efforts were needed because none of the eight recounts done in the past 16 years has resulted in a change of that many votes, according to an Associated Press review. And only one of the elections that went to a recount led to a change in the winner, and the margin in that race started at just 4 votes and ended at 13” (the 2004 GOP primary recount for State Sen. John McComish). Recount win unlikely, Barber fights for votes.

The Arizona Daily Star in an editorial opinion argued that Pima County should join Yavapai and Yuma counties going to “voting centers” that use an electronic signature register and a ballot with the relevant races for where you live, which is printed on demand. Pima County should consider ‘voting centers’. This would eliminate ballots not counted for being cast in the wrong precinct.

The problem with this is that the polling center experiment is a pilot project approved for those specific counties, and it would also require the purchase of new election equipment which may not be currently certified for use under HAVA.

Why argue for such a half measure? Arizona should join Oregon, Washington and Colorado with all-mail balloting with voting centers available on election day statewide. Most local elections are already all-mail balloting in Arizona, and vote-by-mail early ballots account for 70% or more of the ballots cast in general elections.

This would solve the two problems identified by the Star with ballots not being counted: the “right church, wrong pew” rule would no longer apply because ballots are no longer being cast in the wrong precinct. And there would not be any need for hundreds of volunteer poll workers, many of whom are inadequately trained and make human errors.

An additional benefit is that there would not be any need to replace aging voting equipment for multiple precincts on election day, a practice which is becoming far less frequent. It is really a waste of resources and taxpayer money at this point.

So what is the takeaway? Voting rights organizations need to file a citizens initiatives for: (1) a Right to Vote Amendment to the Arizona Constitution declaring that the right to vote is a fundamental constitutional right of which a citizen shall not be deprived without due process of law; and (2) all-mail balloting in Arizona (the Oregon model).

I would also argue for universal voter registration that is automatic at the age of 18 (opt-out), permanent and portable, and that can be updated on election day. FairVote.org | Why Universal Registration? Because this involves a substantial investment in upgrading data bases and equipment, this is probably a bride too far in Arizona right now — but it should be an aspirational goal for the future.