On Friday, a Superior Court judge found that an advocacy organization would likely prevail in its case against Maricopa County Recorder Adrian Fontes because the Secretary of State’s Elections Procedure Manual does not allow the Recorder’s Office to instruct voters to cross out vote made in error.
However, Judge James Smith accepted Fontes’s argument that even though the instructions are illegal, it would cost too much to print new instructions at this point.
Alexander Kolodin, attorney of the advocacy organization, vowed to appeal the ruling.
Kolodin’s clients had hoped to bar Fontes from instructing voters in the general election that they can cross out erroneous votes and pick someone else.
Despite the fact that the Elections Procedure Manual, which the judge described as has having the “force of law and requires instructing voters to request new ballots,” Fontes included the instruction with early ballots in last month’s primary election.
The judge noted that it is the responsibility of the Board of Supervisors to approve the language used in instruction. He wrote:
“The law requires county boards of supervisors prepare voter instructions that follow the EPM. A.R.S. § 16-513, and the EPM-does not allow the New Instruction; just the opposite, the EPM commands boards of supervisors to tell voters to ask for another ballot if they over vote. Plaintiffs are likely to succeed on the merits of whether the County Defendants may include the New Instruction.”
However, the board of supervisors has been unwilling to force Fontes to eliminate the instruction.
The Arizona Attorney General’s Office, which also alleged that Fontes’s instructions to voters are illegal, has joined Kolodin the case.
Still, the judge seemed to buy the argument that there was not enough paper and time to follow the law:
The County defendants argued that it will cost at least $125,000.00 to print new instruction sheets. The County’s vendor told Mr. Valenzuela (County staff) that “it is too late for the vendor to order and obtain sufficient paper to print new Early Ballot Instructions to meet the various mailing deadlines.”
Kolodin disputed that assertion and suggested that a vendor could fill an order for 2.5 million pieces in one week. The mailing deadlines include September 19 to send ballots and instructions to citizens and service members overseas.
The County cited a paper shortage as well. Kolding has said that there is no reason the instructions cannot be printed on ordinary office paper, which is not in short supply.