In early September, the Arizona Supreme Court prohibited Maricopa County officials from including a note with mailed out ballots that told voters it was okay to cross out an error instead of requesting a new ballot. But that didn’t stop the same instructions from being printed in voter pamphlets sent out by the county’s school superintendent.
Arizona Daily Independent has learned voter information pamphlets related to school bond issues and local school district overrides for 18 schools were mailed in late September by Maricopa County School Superintendent Steve Watson. The pamphlets advise voters to simply “cross out your mistake…fill in the oval next to your corrected selection” if they made a mistake.
Watson’s actions do not appear to violate the letter of the Supreme Court’s Sept. 10 order which prohibited County Record Adrian Fontes, Maricopa County, and the county board of supervisors from including the unapproved instruction when mailing out early ballots. However, it is widely accepted that orders of the state’s high court are to be adhered to in spirit as well.
Attorney Alex Kolodin is represents Arizona Public Integrity Alliance, which took its emergency challenge of Fontes’ “what to do if you make an error” instruction to the Supreme Court. The non-profit group promotes integrity in government and public institutions through education and legal action.
The group won its argument that voters must obtain a new ballot if they made a mistake while voting. Kolodin believes the action by the county’s school superintendent is a violation of the Supreme Court’s order, even if Watson himself was not aware of the issue.
“The Board of Supervisors and Adrian Fontes either willfully or negligently failed to inform all of the county’s election officers of their responsibilities under the Arizona Supreme Court order,” Kolodin said. “The Board of Supervisors is complicit in Adrian Fontes’s circumvention of a lawful order of the Arizona Supreme Court. This cannot be tolerated, and we will investigate whether a motion for contempt is warranted against these officials as individuals.”
The ballot error issue came to light in August when Fontes provided primary election voters with the instruction about marking through an errant vote and filling in another oval. He then announced plans to include the same instruction with nearly 2 million ballots being mailed out to voters for the Nov. 3 general election.
One of the arguments accepted by the Supreme Court was that any election practices utilized by Fontes must comply with the Election Procedures Manual put out by Arizona Secretary of State Katie Hobbs. The same manual is used by all 15 of the state’s county recorders as well as various state and local election officials.
The 2020 manual does not contain a provision for anyone -not even the voter- to alter a ballot once a choice has been marked in a race. That means it is not permissible to simply cross out one vote and make a new mark by another candidate as Fontes and now Watson have advocated.
Another argument put forth by Arizona Public Integrity Alliance against the Maricopa County plan was that many automated ballot counting machines will kick out, or reject, ballots containing a stray mark. Such ballots are then manually reviewed in hopes of identifying the voter’s intention.
Such stray marks could be a simple errant ink mark on the ballot that doesn’t involve an actual vote. But if an elections official can’t tell for sure what the voter intended, then no vote will be counted in that race.
Early voting began in Arizona on Oct. 7. It’s unknown as of press time whether county officials intend to advise recipients of the pamphlets before Nov. 3 about the issue in the event a voter needs to request a new ballot.