Pima County supervisors accept McSally demand to canvass election

The Martha McSally campaign asked the Pima County Board of Supervisors to proceed with canvassing this month’s election ignoring concerns about rejected ballots. For years, Republicans in Pima County have alleged corruption in the count, but with McSally ahead by a mere 161, they are now turning a deaf ear to their neighbors’ concerns.

Ron Barber’s attorney, Kevin Hamilton, presented a list of 132 ballots that were left uncounted due to mistakes made by poll workers, and Pima County staff. While Hamilton addressed specifically some of the 132 disenfranchised voters, according to sources there are considerably more ballots in question. When asked about those ballots, Rodd McLeod responded by email, “We aren’t claiming that only these 130 are in question, we simply know that these 130 are Arizonans who deserve to have their ballots counted. This is exactly why we want the canvass to be done thoroughly and with thoughtful consideration to ensure that every lawful vote is counted.”

Pima County’s chaotic elections are nothing new, and the fact that many of the voters were disenfranchised because they cast their ballot at the wrong polling place is common. Unlike past elections, such as the incorporation of Vail last year, in which voters were essentially denied their right to have their vote counted because of confusion over polling places, some of the disenfranchised voters have been identified and their stories told by Hamilton:

At least two ballots were improperly rejected where voters updated their voting address at the Motor Vehicles Department (“MVD”) prior to Election Day but were required to cast provisional ballots because their names were not included on the voter rolls for their new precincts. Marni Gould, a registered Arizona voter since January, recently moved and updated her voter registration address at the MVD. However, upon appearing in person to vote at the correct polling place for her new address, Ms. Gould was informed that she was not on the voter roll. Ms. Gould asked that the County Recorder be contacted to verify the correct voting location, but the Recorder was unavailable.

Ms. Gould then left the proper location to attempt to vote at her old polling place. Id. While en route to the old location, Ms. Gould reached the County Recorder, who told her to return to the polling place she had just left and instructed that Ms. Gould’s ballot would count when the address was verified.

Now, Ms. Gould’s provisional ballot has apparently been rejected.

August D. Ench, who has been registered to vote in Arizona since 2004, also updated his voter registration address at the MVD prior to Election Day.

The MVD provided Mr. Ench with paperwork confirming his voting address change and listing his new voting location. Nonetheless, when Mr. Ench appeared at that location to vote, he was told he was not on the list of registered voters. The poll workers instructed Mr. Ench to vote a provisional ballot and assured Mr. Ench his provisional ballot would be counted. Now, Mr. Ench’s provisional ballot has apparently been rejected.

By updating their registrations and voting in the precinct for their new addresses, Ms. Gould and Mr. Ench fully complied with the requirements of Arizona law. Their votes plainly should be counted. As both of these voters followed directions provided to them (in Ench’s case by poll workers, and in Gould’s case by the Recorder’s office) and Ench was informed that his provisional ballot would be counted, their ballots should have been counted even if they had not voted in their assigned precinct.

Other provisional ballots were improperly rejected where a voter requested but did not receive or did not cast an early ballot. For example, Nancy Sue Cox, who has been registered to vote in Arizona since 1990, requested an early ballot but did not receive one. On Election Day, after first stopping at two incorrect polling locations, she finally arrived at the correct polling location and submitted a provisional ballot. Her ballot should have been, but was not, counted.

Dozens of early ballots have been improperly rejected based on a determination that the voter’s signature on the affidavit on the early ballot envelope did not match the signature on the voter’s registration form. For example, Roma Page, a registered voter in Arizona since 1985, submitted an early ballot in this election. As required, she signed the back of the envelope when she submitted the ballot. Ms. Page was later informed that her ballot was not counted because her signature did not match the signature on her registration card. Ms. Roma was born in 1919 and has been registered to vote since she was 21 years old. Like many older voters, her signature has changed with age. She called the Pima County Recorder’s office to ensure that her ballot was counted, but they neither returned her call, nor counted her ballot. The ballots submitted by Ms. Page and similarly situated declarants must be counted for at least three reasons.

Elle Grace Troutman, who has been registered to vote in Arizona since 2000, legally changed her name in September 2014 but received a mail-in ballot that had her previous name associated with it.

On Election Day, Ms. Troutman went to the polls and was directed to fill out a provisional ballot. After she filled out the ballot, the poll worker looked over the ballot, said that things appeared to be in order, and indicated that Ms. Troutman’s provisional ballot would be counted. The poll worker did not point out to her that she had not signed the provisional ballot. Her vote was not counted. Under these circumstances, where poll worker error causes a voter to cast (or contributes to a voter’s casting) a ballot that may not be counted, the ballot should be counted pursuant to the Equal Protection Clause, for the reasons set forth in the following section. Thus, to the extent that provisional ballots submitted by the declarants were not signed due, at least in part, to poll worker error, those ballots should be counted.

The votes of many eligible, registered voters were rejected because they were not cast in the voters’ assigned precincts. For example, Josh Adam Cohen has been registered to vote in Arizona since 2008. In January 2014, Mr. Cohen moved and had the address on his driver’s license changed. He did not know that he also needed to change his address for purposes of his voter registration. On Election Day, Mr. Cohen went to the polling location for his previous address. He informed the poll worker that he had moved, and the poll worker instructed him to vote a provisional ballot. The poll worker did not direct Mr. Cohen to the correct polling location. Mr. Cohen was assured that his vote would be counted; it was not.

Micah Tordsen, a registered Arizona voter since 2002, arrived on Election Day at the same polling place at which he had voted in the 2012 General Election. He was told by the poll worker that he was at the wrong polling location but was never directed to the correct polling location. Instead, he was told to complete a provisional ballot. He was assured that his vote would be counted; it was not.

Sita Adhikari faced a similar problem. Adhikari became a U.S. citizen in 2013, and this was the first U.S. election in which Adhikari had ever voted. On Election Day, Adhikari arrived at what Adhikari believed to be the proper polling location. A poll worker stated that Adhikari was not on the voter list but did not suggest that Adhikari was at the wrong polling place and did not direct Adhikari to a different polling place. Rather, Adhikari was told to cast a provisional ballot; it was not counted.

In at least two instances, the vote of one spouse was counted while the vote of the other spouse was rejected. Elizabeth J. Jesukaitis, for example, and her husband moved a year prior to the 2014 General Election and they both contacted the Pima County Elections Department to update their voter registration information. On Election Day, Ms. Jesukaitis and her husband each went to the polling location for their new address to vote, and both she and her husband were told that their names were not on the voter list. They each voted a provisional ballot and were told it would be counted. The ballot cast by her husband was counted; the ballot cast by Ms. Jesukaitis was not.

Thelma T. Nathanson, who has been registered to vote in Arizona since 1992, had a similar experience. On Election Day, Ms. Nathanson’s husband went to vote at their polling location before she did. He was originally told that his name was not on the voter list, but he noticed that it was there, right next to his wife’s name, and he was then permitted to vote a regular ballot. When Ms. Nathanson arrived at the same polling location just 40 minutes later, she was told that her name was not on the voter list. She was instructed to vote a provisional ballot and assured that her vote would be counted; it was not. Given that in each case the spouses were registered at the same address and voted at the same polling location, there is no justification for counting one ballot but not the other’s.

Ari Lev Ginsburg’s ballot was improperly rejected as well. Mr. Ginsburg, a registered voter in Pima County, was originally given a regular ballot when he arrived at his polling location on Election Day. When he spoiled his ballot, he requested a new one and was given a provisional ballot by a poll worker. Although he was assured that his ballot would be counted, it was not.

Hamilton notes in his letter to the Board, “Pima County has informed the Ron Barber for Congress campaign that a number of early ballots were rejected because they were not signed. These ballots also should be counted. While the Manual does not provide a means of curing unsigned early ballots, there is no rational basis for permitting ballots to be cured where a signature-mismatch determination has been made but not where a ballot is unsigned. Indeed, the purpose of the signature requirement-to confirm that early ballots are submitted by the correct voter-is clearly served when the voter to whom the early ballot was sent confirms that he or she cast the ballot at issue. Moreover, refusing to count unsigned early ballots where voters come forward to cure their ballots would unduly burden the right to vote and violate Article 2, Section 21, of the Arizona Constitution for the same reasons that refusing to count cured signature-mismatch ballots would. Thus, in order to avoid treating voters differently without a rational basis and unduly burdening the right to vote in violation of the Equal Protection Clause and Article 2, Section 21, of the Arizona Constitution, the Board should count the ballots of any voters who failed to sign their early vote ballots and cure that issue by confirming that they in fact had submitted the early ballot that had been sent to them.”

According to Hamilton’s letter to the Board, “Pima County has provided the Ron Barber for Congress campaign with no explanation beyond “[n]ot specified” for the rejection of many provisional ballots. Clearly, some reason must be provided for disenfranchising the voters who cast these ballots. Unless such a reason is provided, these ballots must be counted.”

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