Two Arizona Election Law Decisions Re: Early Mail-in Ballots

I have been doing election protection legal work for decades, and I have participated in Arizona’s ballot audit procedure since it was first initiated (until the most recent primary).

So I have to say I have no idea what Maricopa County Recorder Adrian Fontes was thinking when he prepared an election guide that instructs voters that if they make a mistake on their ballot they can simply “cross it out” and vote for their preferred candidate.

The computerized ballot scanner will read this ballot as an “over vote,” meaning that no vote is counted in that race. When there are ballots containing additional marks like this, they go to a bipartisan panel of election observers to determine the “intent of the voter.” This can occasionally be contentious, and is unnecessarily time consuming. Why would anyone want to encourage more of this?

The correct thing to do: If you make a mistake filling out your early ballot, take it to your county early voting election center and tell them that you made a mistake and would like a new ballot. They will “spoil” the ballot containing your mistake, and give you a fresh ballot to fill out. You might as fill out your ballot while you are there at your county early voting center and turn it in right away.  Easy peasy.

I can’t believe that this was actually litigated all the way up to the Arizona Supreme Court. Howard Fischer reports, Arizona Supreme Court says voters can’t be instructed how to fix ballot errors (excerpt):

The state’s high court blocked Maricopa County’s recorder from telling voters how they can correct any errors they make on their ballots.

In a brief order late Thursday, the justices said Recorder Adrian Fontes and his staff “exceeded their authority” in including what amounts to a new instruction.

Chief Justice Robert Brutinel said instructions permitted under both state law and the official Election Procedures Manual have not changed.

That finding by itself is not a surprise. Earlier this week, Maricopa County Superior Court Judge James Smith said it was likely that, after a full-blown trial, that Fontes’ action would be found illegal.

But Smith declined a request by Public Integrity Alliance to block the instructions from going out. The judge noted that Fontes already had more than 2 million sheets printed with the information to go out with early ballots. Smith said it made no sense, either logistically or financially, to order new ones printed now.

The high court said, in essence, that’s not an excuse to send out illegal instructions.

What happens now is unclear.

* * *

While the ruling technically affects only Maricopa County, it sends a warning to election officials in the other 14 counties that they should not provide similar advice to their voters.

Central to the issue is that ballots often are kicked out of automated counting systems because of stray marks.

Recorders in various counties have said it is normal practice to have these ballots examined by hand to determine a voter’s intent.

Fontes took that a step farther, telling early voters in the August primary election — and proposing it again for the Nov. 3 general election — that if they vote for the wrong person they can cross that out and re-mark the ballot. That extra marking would kick the ballot out as an “overvote,” leading to the hand examination and, presumably, a vote tallied for the intended candidate.

Public Integrity Alliance did not challenge having election officials review ballots by hand when there are extra marks.

Instead, alliance attorney Alexander Kolodin argued it is illegal to specifically instruct voters they can make these fixes. He said the law and the Election Procedures Manual say voters who “spoil” a ballot should instead request a new one.

Exactly! Why are why even here?

Some more early ballot procedures: The interior ballot envelope requires your SIGNATURE, DATE, and DAYTIME TELEPHONE NUMBER (so you can be contacted if there is an issue with your ballot). DO NOT FORGET TO DO THIS!

In other Arizona election law legal news, the Democratic Party successfully argued to the U.S. District Court of Arizona that for those of you who forget to sign your ballot envelope and turn it in too close to election day for county election officials to notify you to “cure” your early ballot, that Arizona must now allow five business days after election day for unsigned early ballot envelopes to be cured by voters.

https://twitter.com/marceelias/status/1304187301317222401

From the court’s Order (.pdf):

IT IS FURTHER ORDERED that Plaintiffs’ motion for a preliminary and permanent injunction (Doc. 2) is GRANTED. Defendants, their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, must allow voters who are determined to have submitted an early ballot (referred to in this order as a VBM ballot) in an envelope without a signature the opportunity to correct the missing signature until 5:00 p.m. on the fifth business day after a primary, general or special election that includes a federal office or the third business day after any other election.

None of this would even be necessary if voters just followed the instructions on their early ballot and double-checked, triple-checked to make sure they have completed everything on their early ballot before mailing it or dropping it off.

One final note: With the outrageous Republican attacks on the U.S. Postal Service, you should plan on dropping off your early ballot at your county early voting election centers drop off boxes. Eliminate the middle-man, and make certain that your ballot is received by your county elections office to be counted. Most counties allow you to track receipt of your early ballot on the County Recorder or election division web site.