The Court was not unsympathetic to the plight of CD2 voters “whose ballots may have been improperly rejected”
A decision by U.S. District Court Judge Cindy Jorgenson, on Thursday, will allow the canvass by Arizona Secretary of State Ken Bennett of the controversial race between Congressman Ron Barber and challenger Martha McSally.
The judge wrote, “The Court finds that Plaintiffs have not met their burden for the TRO they request, and the Application is denied. It was not discussed at the November 26 hearing whether Plaintiff will continue to seek a preliminary injunction if a TRO is denied. IT IS ORDERED that the Application for a Temporary Restraining Order is denied. The Clerk of Court is directed that the docket should reflect that the Motion for a Preliminary Injunction remains pending.”
Following Jorgenson’s decision, Kyle Quinn-Quesada, Congressman Ron Barber’s Campaign Manager, released the following statement: “While we are disappointed in the court’s decision, we remain committed to ensuring that Southern Arizonans are able to trust the integrity of this election, and we thank the voters who not only took the time to vote in this election, but who came forward to ask that their voices be heard.”
“We look forward to an open and transparent recount that will allow all Arizonans to have confidence in the final outcome of the election,” concluded the statement.
McSally holds a narrow lead of just 161 votes, which will result in an automatic recount of the ballots as soon as the State’s canvas is complete on Monday. McSally fought to have the votes of Pima County residents rejected.
On November 24, 2014, Ron Barber for Congress and three residents of Pima County, Lea Goodwine-Cesarec, Laura Alessandra Breckenridge, and Josh Adam Cohen filed a request for a TRO to prevent the State’s canvass.
The defendants are Ken Bennett, Secretary of State; the Pima County Board of Supervisors, and Board members Ally Miller, Ramon Valdez, Sharon Bronson, Ray Carroll, and Richard Elias; and the Cochise County Board of Supervisors and Board members Patrick Call, Ann English, and Richard Searle.
Martha McSally for Congress and Martha McSally moved to intervene, and filed an opposition, and a Motion to Dismiss. Bennett joined in the opposition to the Motion for a Preliminary Injunction and the Motion to Dismiss.
The judge wrote:
The plaintiffs argued as to unsigned early ballots, until approximately the Thursday before Election Day, Pima County mailed ballots back to early voters who failed to sign their ballot affidavit to provide an opportunity to correct the issue. Cochise County called at least some such voters prior to Election Day to inform them of the oversight and/or sent an affidavit for the voters to return by Election Day. Neither county took any action to cure unsigned early ballots after Election Day.
Plaintiffs appear to argue an equal protection violation based on arbitrary and inconsistent rules and lack of a rational basis to distinguish between permitting a post-election cure for a mismatched signature but not to permit such a cure where a ballot has not been signed.
The unsigned provisional ballots would have been signed if the State had ensured that poll workers took the straight-forward step of ensuring that voters had signed their provisional ballots.
Regarding erroneous statements as to voting in the proper precinct, Plaintiffs assert equal protection and due process claims based on poll workers failure to direct voters to the proper polling place.”
Thus, while the Court is not unsympathetic to the plight of individual voters whose ballots may have been improperly rejected, the Court finds that Plaintiffs have not met their burden to show pervasive error that undermines the integrity of the election.
The Ninth Circuit draws a distinction between “garden variety” election irregularities and a pervasive error that undermines the integrity of the vote.
In general, garden variety election irregularities do not violate the Due Process Clause, even if they control the outcome of the vote or election.
The judge concluded:
As the Sixth Circuit noted, the Help America Vote Act’s (HAVA) provisional voting section is designed to recognize, and compensate for, the improbability of “perfect knowledge” on the part of local election officials.
Thus, the Court finds that Plaintiffs have not met their burden to show a likelihood of success on the merits of equal protection or due process claims or a claim under the HAVA or serious questions going to the merits.
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. 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.
Oral argument was heard on the matter on November 26, 2014.
Bennett argued that since the counties had proceeded with their canvasses, he had no choice but to proceed with the State’s canvas. While McSally asserted “that harm to her and all other state and local candidates will result from the entering of a restraining order and preliminary injunction, creating an unwarranted ripple effect through all other races,” according to the judge. The Secretary of State asserted that his office “may delay the Canvass only if the Secretary of State has not yet received all of the county canvasses by that first Monday after the general election,” noted the judge.
For years, the residents of Pima County have complained bitterly about the arbitrary and inconsistent rules, as well as irregularities in the process employed by the County’s Elections Department. Those complaints have been ignored by the county supervisors. Instead, the supervisors claimed in this case that attorneys advised them that the ballots had to be rejected and that they had to proceed with their canvas.