State GOP audit finds irregularities, not illegalities in 2018 general election

PHOENIX — The Arizona Republican Party conducted an audit of the 2018 General Election and the actions of Maricopa County Recorder Adrian Fontes.

While the audit finds questionable actions on the part of the recorder’s office, it did not identify any illegalities.

Since his election in 2016, Fontes, a Democrat, has been a sources of controversy and the recorder’s office has botched nearly every election resulting in confusion, disenfranchised voters, and – as outlined in the AZGOP audit – a growing sense of distrust on both sides of the political aisle.

In fact, as the Arizona Daily Independent reported in September 2018, the audit shows that Fontes had botched the Primary Election.

That finding came from the Maricopa County Internal Audit Department, which had conducted a review of the primary election at the request of the Maricopa County Board of Supervisors.

The purpose of the review was to provide information and recommendations to the recorder’s office in sufficient time for key corrective actions to be implemented prior to the general election.

Although the audit largely found Fontes responsible for the chaos that occurred in the August 2018 Primary Election, he didn’t appear to learn from it.

Related articles:

Over 100K Arizona Ballots Left To Count, Fontes Under Scrutiny

Maricopa County Releases 2018 Primary Election Issues Report, Fontes Failed

Fontes Tells Maricopa County Voter, Candidate “Go F-Yourself”

The AZGOP Audit in its entirety:

Arizona Republican Party Election Audit [View Preliminary-Report-with-Exhibits]
Stephen Richer
January 25, 2019

On the evening of Tuesday, November 6, 2018 Arizona voters went to bed believing that Republicans had won all three close statewide races: U.S. Senate, Secretary of State, and Superintendent of Education. The highly-respected Associated Press declared victory for Republican Steve Gaynor at 10:20 pm and assured Gaynor that it almost never miscalled a race.

But the Associated Press was somehow wrong. Not only did Gaynor’s election night lead evaporate in the following days, but so too did the leads of Republicans Martha McSally and Frank Riggs. Within a week, McSally’s election night lead of nearly 15,000 votes turned into a deficit of 55,900 votes; Gaynor went from a lead of over 40,000 votes to trailing by 20,252 votes; and Riggs’s apparent victory by a margin of approximately 7,000 votes turned into a loss by 71,676 votes.

These reversals of fortune in three statewide elections left many Arizona voters confused and upset, especially Arizona Republicans who felt as though they’d had the rug pulled out from under them. Those voters voiced their concerns to Arizona Republican Party Chairman Jonathan Lines who responded by launching this review on November 15, 2018. Chairman Lines asked that this Review pay particular attention to the procedures in Maricopa County — home to more than 60 percent of Arizona’s voters in the most recent election.

Elections in Maricopa County are overseen by the Maricopa County Recorder’s Office.

In the past year, that office has already been the subject of at least three reviews, audits, or investigations. Those reviews focused on the primary election on August 28, 2018, in which 62 of the 503 voting locations failed to open on time,10 delays that affected up to 270,000 voters and caused “many” voters to turn away from their polling places.

The Maricopa County Internal Audit Department released an interim report on September 21, 2018 detailing the failings of the primary; the consulting and audit firm Berry Dunn produced a report on November 2, 2018 that covered the attempts by the Recorder’s Office to improve its operations in time for the general election; The Arizona Republic, and other local publications, wrote many detailed articles regarding the failures of the primary; and the Maricopa County Board of Supervisors recently voted unanimously to allocate $50,000 to a working group charged with reviewing and improving the County’s election practices.

This Review focuses on the Recorder’s Office in the November general election and the questions most frequently posed by voters to Chairman Jonathan Lines and the Arizona Republican Party. To date, the Review has investigated and assessed: (1) the Office’s decision to open special emergency voting centers, (2) the Office’s decision to rehabilitate ballots following election night, (3) allegations of partisan behavior by County Recorder Adrian Fontes, and (4) particularized allegations of voter fraud or irregularities in Maricopa County.

This Review is preliminary. The Recorder’s Office has not yet responded to public records requests made on November 10, 2018, December 17, 2018, and January 1, 2019 for the purposes of this Review. Nor has the Recorder’s Office responded to requests for interviews and questions regarding the decisions made by the Recorder’s Office. Without these documents and interviews, this Review can make only speculative conclusions.

Additionally, a future, complete report should examine the two hour-plus wait times at certain polling locations, the delay in the tabulation process following Election Day, the security protocols for delivering votes from individual polling places to a central location, a midday software failure that caused all voting machines to go temporarily offline, reports of ballot harvesting, and allegations that Maricopa County does not comply with ARS § 16-668 by syncing its voter database with the database maintained by the Secretary of State’s Office.

  1. Emergency Voting Centers

 Title 16 of the Arizona Revised Statutes (“ARS”) and the 2014 State of Arizona Elections Procedures Manual allow counties to accept emergency ballots during the weekend and the Monday before the Tuesday Election Day. ARS section 16-542 defines “emergency” as “any unforeseen circumstances that would prevent the elector from voting at the polls.” The Elections Procedures Manual offers only slightly more detail:

“Emergency” means any unforeseen circumstances that would prevent the elector from voting at the polls.

Electors who encounter an emergency occurring between:

  • 5:00 p.m. on the second Friday before the election and
  • 5:00 p.m. on the Monday before the election

may request to vote in the manner prescribed by the County Recorder of their respective county.

Arizona counties — including Maricopa County — have long allowed voters to cast ballots in such an emergency manner. However, the manner in which Recorder Fontes allowed for emergency voting in the November election deviated significantly from the practices of the Recorder’s Office under Recorder Helen Purcell.

1A. Decision to Expand Emergency Voting

 The Recorder’s Office opened the following five emergency voting locations on Saturday, November 3 and Monday, November 5 from 8:00 AM until 5:00 PM:

  • Avondale City Hall (11465 W. Civic Dr., Avondale)
  • Indian Bend Wash Visitor Center (4201 N. Hayden Rd., Scottsdale)
  • MCTEC – Elections Department (510 S. 3rd Ave., Phoenix)
  • Mesa Recorder’s Office (222 E. Javelina, Mesa)
  • Tolleson Park & Recreation Center (9555 W. Van Buren St., Tolleson)27

Recorder Fontes advertised these locations on his personal Twitter feed, his Recorder’s Twitter feed,  and through the official media outlets of the Recorder’s Office.  This practice deviated significantly from the practices of the previous recorder, Helen Purcell. Under Purcell, the Recorder’s Office did not advertise the availability of emergency voting, and it did not open additional locations outside of the Recorder’s Office.   Instead, emergency voting under Purcell was limited to voters who sought out the option and drove to the Recorder’s Office, or people who contacted the Recorder’s Office from, for example, a hospital, in which case Purcell would dispatch an officer to collect the person’s ballot.

Many observers have questioned the motivation behind Recorder Fontes’s decision to expand the number of emergency voting locations and to advertise their availability. Some observers have pointed to Recorder Fontes’s advocacy for Arizona House Bill 2206 and Arizona Senate Bill 1466 during the 2018 legislative session. Those bills sought, among other things, to expand early voting to “the three-day period immediately preceding election day.” In other words, the bills sought to expand early voting to the period covered by emergency voting. Recorder Fontes voiced strong support for certain provisions in the bills, including the expansion of early voting to include the weekend prior to Election Day. In an email to members of the Arizona House, dated April 19, 2018, Recorder Fontes wrote, “[t]he Mesnard Floor Amendment also removes an important provision of SB 1466, which allows Counties to approve weekend voting immediately prior to Election Day. This makes voting more convenient and reduces the possibility of long lines on Election Day.”  On the same day, Recorder Fontes released a video in which he criticized the “people who killed weekend voting,” saying that weekend voting is “a really good thing for Arizona.” He then encouraged voters to contact their representatives in the Arizona legislature to support weekend voting.

With this as a backdrop, it seems plausible that Recorder Fontes expanded emergency voting to partially accomplish what the Arizona legislature considered but refused to authorize: expanding early voting to the Saturday, Sunday, and Monday before the Tuesday election. Such a “back door” to a legislative proposal would almost certainly violate the intent of emergency voting as defined in the Arizona code and in the Elections Procedure Manual (which perhaps is why Recorder Fontes first sought to use legislative channels).

Recorder Fontes has stated that he opened additional emergency voting locations at the request of Maricopa County Supervisor Steve Gallardo, the Board of Supervisors’ lone Democrat. Recorder Fontes did not ask for the input of other members of the Board regarding the decision to expand emergency voting. The Recorder’s Office has not responded to the public records requests made pursuant to this Review regarding the Recorder’s decision to expand emergency voting locations, nor did the Recorder respond to the Review’s request to interview him on this topic.

This Review preliminarily concludes that it is plausible that Recorder Fontes expanded emergency voting — in a manner inconsistent with the intent of state statutes — to achieve what the legislature considered but refused to authorize: expanding early voting to the Saturday, Sunday, and Monday before Election Day Tuesday.

1B. Location of the Emergency Voting Centers 

As noted above, Recorder Fontes chose to expand emergency voting to the following five locations:

  • Avondale City Hall (11465 W. Civic Dr., Avondale)
  • Indian Bend Wash Visitor Center (4201 N. Hayden Rd., Scottsdale)
  • MCTEC – Elections Department (510 S. 3rd Ave., Phoenix)
  • Mesa Recorder’s Office (222 E. Javelina, Mesa)
  • Tolleson Park & Recreation Center (9555 W. Van Buren St., Tolleson)39

The rationale behind the choice of these locations is unknown. The Recorder’s Office has not yet responded to the public document requests made on November 10 and December 17, 2018 regarding this topic. Nor has Recorder Fontes responded to this Review’s interview request on this topic.

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