This Review has made multiple public records requests relating to the allegation of coordination between the Recorder’s Office and the Sinema campaign or affiliates of the Sinema campaign, and has sought interviews with the Recorder’s Office to this end. At this preliminary point, this Review has no evidence to disprove or confirm the allegations regarding coordination between the Recorder Fontes and the Sinema campaign.
1E. The Effects of Emergency Voting and Policy Preferences
The Arizona Capitol Times, through its publication The Yellow Sheet Report, reported on November 19, 2018, that 2,788 votes had been cast at the emergency voting centers. As stated by the author of that publication, the margin of victory in the U.S. Senate race, the Secretary of State race, and the Superintendent race each exceeded the total number of votes cast at emergency voting centers. It is therefore almost certainly accurate to say that the presence of emergency voting centers did not change the results of any of those three elections. However, the eventual impact of the emergency voting centers on the election has no bearing on the appropriateness, lawfulness, or possible partisan motivation of their authorization and implementation.
- Rehabilitation of Ballots
Another issue that drew considerable attention was the Recorder’s decision to continue rehabilitating ballots after election night. Arizona law allows for early voting by mail, an option already utilized by a significant majority of Arizona voters, and one that is increasingly popular. According to Recorder Fontes, 81.44% of Maricopa County voters took advantage of some form of early voting in the November 2018 election. Those voting by mail in the recent election had until October 31 to postmark their ballots. If they missed that deadline, they could drop off their mail-in ballots at the in-person voting locations on Election Day, so long as those ballots were received by 7:00 p.m. on Election Day.61 Once “late early ballots” are received, the signature on the green envelope enclosing the ballot is compared with the voter’s signature on file in order to confirm the voter’s identity. This is done because early ballots do not require the voter to present identification. In the event that the signature on the green envelope does not match the signature on file, the Recorder’s Office will attempt to “cure” or “rehabilitate” the ballot by contacting the voter and verifying his or her identity. The Recorder’s Office reported receiving 168,000 late-early ballots on Election Day
Prior to Recorder Fontes’s time in office, Maricopa County stopped the curing/rehabilitation process at 7:00 pm on Election Night. This had the potential effect of excluding some late early ballots from being counted because if those ballots had mismatched signatures, the Recorder’s Office might not have had enough time to cure the ballot received on Election Day prior to 7:00 p.m. that same day. According to Recorder Purcell, early voting is intended to in fact be early; voters have multiple weeks prior to the election to mail in their ballots. If voters choose to wait until Election Day to drop off the “early ballot” then the burden is on them to make sure their signature matches the signature on file.
Recorder Fontes departed from Recorder Purcell’s tradition and instead chose to continue rehabilitating ballots after Election Day. This prompted a lawsuit from the Arizona Republican Party. The Republican Party claimed that “[p]rinciples of equal protection cannot abide the County Recorder Defendants’ fashioning of ad hoc deadlines and variegated procedures for the disposition of facially deficient early ballots.”68 In other words, the Republican Party objected that votes continued to be cured in some counties — such as Maricopa County — while that process ended at 7:00 p.m. on Election Day in other counties. In doing so, the Party argued, the voting system treated votes unequally.
County Recorders are provided with limited direction regarding the curing of ballots under Section 16-550(A) of the Arizona Code and the 2014 Elections Procedures Manual. Page 166 of the Elections Procedures Manual states that “the County Recorder, if time permits, may attempt to contact the voter to ascertain whether the voter actually voted the early ballot and any reasons why the signatures may not match.” The language “if time permits” is vague and does not clearly mark a definite stop time for the curing process.
While a departure from the practices of Recorder Purcell, Recorder Fontes’s decision to continue rehabilitating ballots after Election Day is not unique among county recorders. As noted by the Republican Party in the litigation addressing this issue, Coconino, Apache, Pinal, and Pima counties all continued rehabilitation for some period of time after Election Day. One current county recorder remarked that the county recorders gathered prior to the November election to discuss the process of curing. That particular county recorder believed that the recorders had together reached an agreement to end curing at 7:00 p.m. on Election Night, but acknowledges that they did not receive the guidance or direction that some recorders sought regarding the issue from Secretary of State Michelle Reagan.
When asked by reporters from the Arizona Capitol Times if he had conducted a legal analysis regarding his decision to continue curing ballots, Recorder Fontes declared that such information was privileged. This Review has asked for — but not received — similar documents regarding the Recorder’s motivations for changing the process and his legal justification for doing so. Nonetheless, in continuing the curing process past Election Day, Recorder Fontes did not violate any statutory provision or the 2014 Elections Procedures Manual. Moreover, this decision eventually became moot as a result of the settlement agreement in the Arizona Republican Party lawsuit, which standardized the curing process across counties. That settlement, however, does not standardize the curing process across counties for future elections.
Multiple recorders commented in interviews taken pursuant to this Review that the curing process could benefit from statutory clarification or from guidance from the Secretary of State’s Office. Additionally, as currently read, A.R.S. § 16-552(E) seems incompatible with an extended curing process. That section requires that early voting challenges must be completed no later than 5:00 p.m. on the Monday following Election Day, and it also requires that a period of notice be given to a voter with a challenged ballot.
It must also be noted that any curing decision likely had only a minimal impact on the election. The Arizona Capitol Times reported that of the “mail-in ballots that were counted after election day, 7,240 were flagged with questionable signatures, and the recorder’s office validated 6,933 of them” — ballots that Recorder Fontes acknowledges would not have been counted under Recorder Purcell. This total — 6,933 votes — does not exceed the vote differential in any of the three close statewide races. Nonetheless, as stated in the context of emergency voting centers, the eventual impact of the Recorder’s decision has no bearing on the appropriateness or the motivation of the decision.
- Partisanship of Recorder Fontes
The election for Maricopa County Recorder is a partisan race that features candidates explicitly linked to political parties. Recorder Fontes won the 2016 election as a Democrat. He seemingly embraces many traditionally left-of-center causes such as raising the minimum wage and expanding public transportation projects like light rail, and he affiliates with politically left-of-center organizations such as the Arena’s candidate training program. His partisan affiliation and statements about matters of public policy are, of course, permissible and perhaps even encouraged by the partisan nature of the election for County Recorder. However, this Review analyzes if Recorder Fontes behaved in a partisan manner that was implicitly or explicitly advantageous or detrimental to Arizona Democrats or Republicans.
3A. Implicit Partisanship
In the immediate aftermath of the closely-contested November election, multiple parties filed lawsuits challenging certain decisions made by the Recorder, such as the decision to open emergency voting centers or the decision to continue rehabilitating ballots. In response to lawsuits brought by the Republican Party and comments made by Republican Party Chairman Jonathan Lines, the Recorder responded with open hostility. Following the filing of one lawsuit by the Republican Party, Recorder Fontes tweeted “Bring it.” Perhaps such comments are to be expected if one feels that one’s professional practices are being unfairly called into question through public lawsuit. Additionally, Recorder Fontes is reported to be somebody who freely shares his emotions, even previously going so far as to tell one critical Democratic candidate to “go F- yourself … by the way, is your Mom also running your campaign? She seems to solve all your other problems.” But the “Bring it” comment stands in contrast to the absence of a comments with regard to a suit filed by the left-of-center Arizona Advocacy Network which alleged that “[t]he polling sites in all 40 vote center locations and at least 9 regular polling places failed to open at 6:00 a.m.,” and the lawsuit filed by the Arizona Democratic Party demanding that Recorder Fontes “turn over public records relating to conditional provisional ballots, out-of-precinct ballots, and ballots not counted.”
Recorder Fontes persisted in making negative comments and insinuations about the Republican Party and Chairman Jonathan Lines in the weeks following the election: “I’m concerned that some folks just don’t want Maricopa County voters to vote, and they don’t want us to help voters get their voices heard. That’s what bothers me.” And “Mr. Lines and his hyperbole are bad for our democracy.” He also stated that the Chairman’s effort to investigate the election process through this Review was “nonsense” and “childish,” and that he would not participate in the Review.
Perhaps these comments regarding the Republican Party and Chairman Lines are well-founded, perhaps they are not. That likely depends on a personal, partisan point of view. However, these comments have caused some Republican voters to reasonably question whether Recorder Fontes is a neutral arbiter of the election tabulation process, or one who lets his obvious disdain for the Republican Party influence his actions as Recorder.