PHOENIX – On August 17, a cease and desist letter was sent to Maricopa County Recorder Adrian Fontes regarding a new instruction included on early ballot materials during this month’s Primary Election. In the letter, attorney Alexander Kolodin, advises Fontes that the instruction to cross out votes made in error on a ballot must not be included on the upcoming General Election ballots.
“Adrian Fontes is a dangerous man who makes up his own rules as he goes along. Not surprisingly, the rules he invents always make our elections less secure and provide back doors for unscrupulous people to put their thumb on the scale of our elections,” Kolodin told the Arizona Daily Independent.
“Our client knows that he is going to keep doing this as long as nobody challenges him,” said Kolodin referring to Fontes. “Perhaps the worst of these new rules is the instruction that voters can change their vote without requesting a new ballot by crossing-off the old vote and filling in a new bubble. Of course, there’s no way to know who actually crossed off a vote, so anyone in a ballot’s chain of custody could change a vote without anyone being able to tell. That’s why, on Monday, our client sent a cease and desist letter telling Fontes to knock it off or get sued.”
The instruction ad raised the eyebrows of both lawmakers and candidates alike during the primary cycle.
Houston, we have a problem. Voter fraud is now easier than ever. If you see a ballot where someone made a mistake and voted for the wrong person you can just strike it out and change it. pic.twitter.com/vRRieihdLh
— Warren Petersen (@votewarren) July 11, 2020
The letter reads:
CEASE AND DESIST
(Time Sensitive)
Dear Recorder Fontes:
We represent the Arizona Public Integrity Alliance Inc. and Tyler Montague. During the recent primary election, your office began including a new instruction with early ballots – that voters could cure mistakes by crossing out incorrect votes and then filling in a new oval. Ex. A. Our clients are concerned that these new instructions allow any bad actor in a ballot’s chain of custody to change a vote that has already been cast in a manner that makes it difficult, if not impossible, to identify that wrongdoing has occurred. They demand that your office immediately cease and desist from the practice of including this instruction with early ballots.
Instructions supplied by counties to voters must be prepared in conformity with the Secretary of State’s Election Procedures Manual (“Manual”). A.R.S. § 16-513. Along with early ballots, “A County Recorder must supply printed instructions that: . . . 3. Inform voters that no votes will be counted for a particular office if they overvote (vote for more candidates than permitted) and therefore the voter should contact the County Recorder to request a new ballot in the event of an overvote[.]” Manual (2)(I)(C)(3); See also Id. at (2)(I)(E) (county recorder’s discretion extends to allowing voters to request replacement ballots and limit the number of replacement ballots). An instruction that it is acceptable to vote for one candidate, cross out their name, and then mark the bubble for a different candidate is not in conformity with this requirement. Rather, it provides an alternative, unapproved, method of curing overvotes. Deviating from the instructions provided for in the Manual and supplying an instruction which is at odds with those given by other counties additionally defeats the statutory policy objective behind the Manual – maximizing the uniformity of procedures for early voting and tabulating ballots. A.R.S. § 16-452(A) (setting out the policy objectives behind the Manual).
The instructions the Manual requires you to give minimize the risk of fraud and abuse. Under those instructions, once a voter has made their choice, nobody in the ballot’s chain of custody can alter that selection without spoiling the ballot. In contrast, your new instruction increases the potential for fraud in our elections because anyone in the ballot’s chain of custody can alter a vote in a way that is indistinguishable from an alteration made by the voter themselves.
We understand that your office has already investigated complaints regarding this issue. In consideration of this fact, and given the looming general election ballot-printing deadline, we request that you reply to this letter no later than Monday, August 24th, acknowledging that your office will cease and desist from the practice of printing this or similar instructions on early ballots. Otherwise, our clients will proceed with litigation and, in that event, will seek attorneys’ fees and costs under the private attorney general doctrine and other applicable law.
You may reply to this letter via email to alexander.kolodin@kolodinlaw.com and cviskovic@kolodinlaw.com. Please do not hesitate to contact us with any questions.