Maricopa County Superior Court Joshua Rogers on Friday ordered Recorder Helen Purcell to do her job and count 18 previously uncounted ballots to the final tally in the CD5 race. However, candidate Christine Jones is fighting for all disenfranchised voters in the District.
The 18 votes were counted after the judge’s ruling and increased Biggs’ lead in the race from 9 votes to 16 votes.
Jones sent a letter to Purcell requesting that she the count 136 votes that were cast by voters in the wrong polling place. Those votes were deemed provisional ballots by Purcell and left uncounted.
The judge found that the “nature of the poll worker error in this case … can be accurately described as ‘garden variety.’ Instead, the error is the result of a uniform procedure implemented by Maricopa County in instructing voters who are in the wrong precinct.” Poll workers and voters were not told that if they voted at the wrong polling place their vote would be treated as a provisional ballot and thus uncounted.
The judge wrote, “As a result, numerous voters who were either told by poll workers that their vote would count or, by silence, were misled to believe that their vote would count, were disenfranchised. There were 728 provisional ballots across the county — not just in the 5th District race — rejected for voting in the wrong precinct.”
Jones’ letter to Purcell reads:
Dear Ms. Purcell:
I write to state our client Christine Jones’ fundamental belief and position that all provisional ballots cast by voters in the wrong precinct in the Republican primary race for Arizona’s Fifth Congressional District (CD 5) be respected and counted.
This morning Judge Joshua Rogers of the Maricopa County Superior Court ordered your office to count the provisional ballots of 18 voters in the Primary Election held on August 30, 2016. These are voters who cast provisional ballots in the wrong polling place.
We respectfully request that you count not just the 18 provisional ballot voters identified in Judge Roger’s order, but rather count all CD 5 voters who cast provisional ballots in the wrong polling place. We have identified 136 such voters from the records provided to us by your office on September 3, 2016.
Please note that you do not need a court order to process these additional lawful votes. You should be guided by your oath and the requirements of the U.S. and Arizona Constitutions, which preserve the fundamental voting rights of every voter. However, Judge Roger’s order clearly provides you the authority you need. The court found “the burden on Maricopa County voters is severe” when they must vote provisionally because they are in the wrong polling place and not informed that their votes will not count because of the County’s policy. As noted by Judge Rogers, that policy resulted in “numerous voters who were either told by poll workers that their vote would count or, by silence, were misled to believe that their vote would count, were disenfranchised.”
With respect to the County’s policy, the court found it to be systemic and countywide. Thus, the policy wrongfully applied not just to the 18 identified voters, but to every voter casting a ballot in the wrong precinct. Consequently, as a matter of fundamental constitutional law, you must count all 136 of these wrong precinct ballots in CD5.
Counting these votes is within your discretion. Regardless of whether the final count favors Christine Jones or Andy Biggs, it is the right thing to do. Please note that representatives for both Christine Jones and Andy Biggs did everything possible to contact these voters in the short window of time between September 3 and September 7, but could only do so much before the scheduled canvass.
It is now up to you to exercise your discretion to count all 136 wrong precinct ballots. As I said, it’s the right thing to do for the voters of Maricopa County and CD 5. Please let me know by 3:30 p.m. today if you will honor this request.
Biggs has run what many view to be a dirty race. As a result, few find it surprising that he would try to prevent all votes from being counted. Biggs’ lawyers claimed that counting the votes would amount to making exceptions to the rules, and ignored the fact that those rules are abitrary.