The Maricopa County Attorney’s Office has responded to a detailed request from the Arizona Attorney General’s Office for information about problems which occurred with ballot printers at several voting centers on Election Day, Nov. 8.
And while the five-page response to Jennifer Wright, head of the AGO’s elections integrity unit, includes the county’s legal arguments about some issued with the 2022 General Election, one thing it does not include is an apology from Maricopa County officials for the problems experienced by thousands of voters.
In fact, the response letter authored by Thomas Liddy, the division chief of the county attorney’s civil services division, simply calls the printer problems “regrettable.”
Liddy’s letter to Wright was released with a written statement from Bill Gates, the county’s board chairman who has come under fire since Election Day for his tone and demeanor in addressing the printer issues.
“Our response is available for the public to read in its entirety and details how Maricopa County followed state and federal laws to ensure every voter was provided the opportunity to cast a ballot,” his statement reads.
The county’s Twitter account also linked to Liddy’s response on Sunday and noted “all voters had the opportunity to legally and securely cast their ballot.” However, those statements make no reference to whether all cast ballots were actually counted.
The problems stem from an unanticipated printing problem at 31 percent of Maricopa County’s 223 voting centers on Election Day. This caused some ballots to be printed with timing marks that could not be read by precinct-based tabulators.
Voters were given an option to place their unreadable ballots in Door 3 of a tabulator to be counted later at the county’s main election office. But Gates also advised voters during a press conference that they could go to another voting center to cast their ballots.
The problem with that option is the voters had to first be “checked out” from the initial voting center in order to get a new ballot they could feed into the tabulator at the second location.
As a result, there have been numerous allegations that potentially thousands of Maricopa County voters were disenfranchised. A letter with a series of questions was sent to county elections officials on Nov. 19 by Wright with those concerns in mind.
A separate report also issued by the county Sunday contends only 206 Maricopa County voters checked-in at one location and then voted at a second location. Of those, 84 were properly checked out before going to the second location and thus had their ballot tabulated on-site.
And of the remaining 122 voters, they were issued provisional ballots, all but 13 of which were eventually counted. Neither that report nor Liddy’s letter address how many voters experienced problems only to be unable to get a ballot cast later.
Meanwhile, Liddy’s response chides Wright, calling her demand for a response by Nov. 28 “not a reasonable amount of time” as it provided county staff only three non-holiday business days to reply. His comments on five issues raised by Wright come with the caveat that county officials reserve the right to submitted revised responses “should any become necessary.”
The remaining questions included in Wright’s letter “will have to wait,” Liddy added, although he makes no estimate for the release of further information. One consideration is that three races are subject to a statutory automatic recount, which Liddy noted “will keep the Elections Department fully occupied for the next several weeks.”
Here is a summary of Liddy’s Nov. 27 response to Wright:
The Free and Equal Clause of the Arizona Constitution – Liddy’s letter denies the printer issues violated the Arizona Constitution’s requirement that all elections shall be free and equal and that there be no interference “to prevent the free exercise” of the right of suffrage.
This constitutional guarantee, Liddy noted, “does not mean that an election might be invalid if there are unexpected printing difficulties preventing on-site tabulation, when all the voters who attempted to vote were provided legal options for doing so.”
Liddy also pointed to the fact eight of Arizona 15 counties do not utilize polling location tabulators.
“It cannot be the case that the limited use of the Door 3 ballot box for some voters in Maricopa County violates the Constitution, while the required use of a ballot box by every voter in over half of the state’s counties does not,” he wrote.
Arizona Statutory Uniformity Requirements – Liddy pushes back on Wright’s suggestion that state laws requiring uniformity in election procedures means there is some type of legal entitlement to a flawless election process.
“These laws, however, do not require that every printer and tabulator work perfectly such that there can never be any unplanned and unanticipated equipment malfunctions or failures,” he wrote.
Federal Uniformity Requirements – Liddy says Wright’s suggestion that the technical problems with printers at some of Maricopa County’s voting centers violated federal uniformity requirements is “incorrect.”
The Legality of Maricopa County’s Check-out Procedures – Liddy responded that no state law prohibits a voter from checking out of a particular voting center in order to go to another site to cast their ballot. Instead, the county has put its own procedure in place which allows such an action.
But problems can arise when a voter leaves the first voting center without checking out. This will cause election records at the second voting center to show the voter previously checked in to vote.
According to Liddy, such a voter “will be allowed to vote a provisional ballot in the new vote center and place it in a provisional ballot envelope.” The County will then research whether the voter already cast a ballot. If there is information showing the person did vote, the provisional ballot envelope will remain unopened and the vote “will not be counted,” Liddy explained.
Reconciliation of Votes Cast – One of Wright’s allegations is that Maricopa County violated state law by not performing a reconciliation of votes cast versus the number of voters checked in on “a poll list” at each of the county’s polling locations.
“Since 2020, Maricopa County voters are afforded the ability to vote at any vote center in the County, which is consistent with current Arizona law,” according to Liddy, who noted the county now uses electronic site books to check-in voters instead of paper poll rosters.
Therefore, there is no ‘poll list’ in the vote center. “The reconciliation does, however, still occur, it just occurs at MCTEC instead of in each vote center,” Liddy added.
LTR-2022.11.27-Liddy-to-Wright-FINAL