DOJ Sues For CD8 Absentee Voting, Reagan Blames Ducey For Timeline

Arizona Secretary of State’s Office “found out about the dates at the same time as everyone else.”

The Department of Justice has filed a lawsuit against Arizona on Wednesday due to a botched timeline which it failed to give absentee voters in the CD8 Democratic Special Election Primary.

According to Courthouse News, “The Justice Department’s civil rights division sued Arizona and its Secretary of State Michele Reagan, claiming when it changed the roster of candidates for a congressional special election set for Feb. 27, it needed to give absentee voters 45 days to consider the finalized ballot.”

“The inability of the state to transmit the final absentee ballots to UOCAVA voters receiving a Democratic Party ballot by the 45th day before the February 27, 2018 special primary election for the House of Representatives violates the United States of America under the Uniformed and Overseas Citizens Absentee Voting Act” wrote John Gore, an assistant attorney general with the civil rights division of the justice department.

The DOJ is seeking a delay of the election until all absentee voters have “sufficient opportunity in accordance with UOCAVA to receive, mark, and return their ballots in time.”

Courthouse News reported that “Reagan immediately announced a special election, scheduling the primary for Feb. 27 and the general election for April 24,” after Congressman Trent Franks announced his retirement and immediate departure from the House. However, Reagan’s spokesman, Matt Roberts, told the ADI in an email dated January 23, that the Secretary of State did not choose the dates. Roberts said that governor picked the dates and that the Secretary of State’s Office “found out about the dates at the same time as everyone else.”

The ADI found that the Governor’s Office appears to have set a timeline that included one less week than allowed by statute for the primary and two fewer weeks than allowed for the general election.

“The accelerated time frame to gather the signatures necessary to qualify a candidate meant Reagan took the unusual step of distributing ballots on Jan. 12 – one day before the federally mandated deadline – with a disclaimer that the ballots might change,” reported Courthouse News.

According to the Justice Department, after a judge found that one candidate did not qualify to be on the ballot due to a failure to collect enough nominating signatures, the state should have delayed the Special Election “to accommodate the changed ballot to ensure absentee voters would not file an incorrect ballot or cast votes for a candidate who was no longer qualified.”

The lawsuit reads in part:

On December 8, 2017, Representative Trent Franks resigned from Congress. Representative Franks represented the Eighth Congressional District, which is located entirely within Maricopa County. The governor set February 27, 2018 as the date for the special primary election and April 24, 2018 as the date for the special general election.

Under Arizona’s election code, candidates were required to file nominating petitions for the special primary election by January 10, 2018, and the deadline to file challenges to such nominating petitions was January 18, 2018. Ariz. Rev. Stat. § 16-222(B).

The deadline for transmission of absentee ballots to Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) voters who requested them at least 45 days before the special primary election was January 13, 2018.

The deadline for transmission of absentee ballots to UOCAVA voters who requested them at least 45 days before the special general election is March 10, 2018.

On January 12, 2018, the day before the UOCAVA transmission deadline, Maricopa County election officials transmitted ballots (the “original ballots”) to all eligible UOCAVA voters who had requested them by that date.

Because of the possibility that changes to the ballot could result from challenges to a candidate’s nominating petition, Maricopa County election officials included a notice with the original ballots explaining that the list of candidates was not yet final due to potential candidate nomination petition challenges, and the final list of candidates would not be confirmed until January 25, 2018. The notice advised that an updated official ballot would be sent on that date. It further advised that voters could choose to vote the enclosed ballot, or wait for the updated ballot; but, if they voted the enclosed ballot and cast their vote for a candidate who was subsequently disqualified, they would not be able to vote a second ballot or change their vote.

Some of the UOCAVA voters to whom original ballots were sent on January 12, 2018 received Republican Party, Libertarian Party, or Green Party ballots. No challenges were ultimately filed by the January 18, 2018 deadline to the candidates on the Republican Party, Libertarian Party, or Green Party ballots. Accordingly, on January 19, 2018, Maricopa County election officials sent a second notice to those voters explaining that no candidate petition challenge had been filed for the Republican, Libertarian or Green Party nomination. Therefore, eligible UOCAVA voters were notified that the ballot transmitted on January 12, 2018 had not changed and voters should cast that original ballot. The notice further advised that the UOCAVA voters should return their voted ballot so that it is received no later than 7:00 p.m. on Election Day, February 27, 2018.

Some of the UOCAVA voters to whom original ballots were sent on January 12, 2018 received Democratic Party ballots. These ballots (the “original Democratic ballots”) included the names of three candidates who had filed timely nominating petitions.

Challenges were ultimately filed by January 18, 2018 to two of these three candidates. On January 23, 2018, a challenge to one of the Democratic Party candidates was sustained by a state court, and the candidate was ordered removed from the ballot.

On January 23, 2018, Maricopa County election officials sent corrected ballots reflecting this change (the “corrected Democratic ballots”) to UOCAVA voters who had received original Democratic ballots. Along with the corrected Democratic ballots, election officials included a notice explaining that one of the candidates listed on the ballot mailed on January 12, 2018 had been removed pursuant to a court order. Therefore, the notice explained that the voter should cast a corrected ballot for the Democratic Party nominee, which was enclosed with the notice. The notice further advised the UOCAVA voters to vote the corrected ballot included with the notice and to return it so that it is received by 7:00 p.m. on Election Day, February 27, 2018.

The corrected Democratic ballots were transmitted either electronically or by postal mail based on the voters’ preferred transmittal method. All UOCAVA voters have the option to return their ballots by electronic upload, facsimile, or mail, regardless of their previously requested transmittal method.

Under Arizona law, ballots returned by UOCAVA voters must be received by 7:00 p.m. on Election Day to be counted. See Ariz. Rev. Stat. §§ 16-547(C) and 16-551(C). Accordingly, in order to be counted, the corrected Democratic ballots must be received by 7:00 p.m. on February 27, 2018, which is 35 days after the date of transmittal of the corrected ballots.

The inability of the State to transmit the final absentee ballots to UOCAVA voters receiving a Democratic Party ballot by the 45th day before the February 27, 2018 special primary election for the House of Representatives violates Section 102(a)(8)(A) of UOCAVA, 52 U.S.C. § 20302(a)(8)(A).

Furthermore, the notice sent to all UOCAVA voters for all parties on January 12 along with the original ballots encouraged voters to await further notice to submit their ballots, and to await receipt of an “updated official ballot.” However, UOCAVA voters who received Republican Party, Libertarian Party, or Green Party ballots were never sent an “updated official ballot,” and a second notice advising that there was no change to the ballot was not transmitted until January 19, 2018. To be counted, these original ballots must be received by February 27, 2018, which is 39 days after the date of transmittal of the second notice. As a result, these UOCAVA voters have been deprived of the meaningful opportunity to cast a ballot that UOCAVA’s 45-day transmission deadline seeks to ensure, which violates Section 102(a)(8)(A) of UOCAVA, 52 U.S.C. § 20302(a)(8)(A).

An order of this Court is now necessary to require Defendants to take corrective action to protect the rights granted by UOCAVA and to ensure that UOCAVA voters have sufficient opportunity under Federal law to receive, mark, and return their absentee ballots in time to be counted for the February 27, 2018 special primary election for the House of Representatives, and in future special elections for Federal office.