Arizona Republicans Could Pursue A Legal Battle Over A Handful Of Phoenix-Area Ballots, Lawyer Says
With key races in Arizona still undecided, there’s a dramatic legal conflict brewing over a small number of ballots that could end up playing a significant role in deciding some of the state’s (and the country’s) most important elections, including for the U.S. Senate, governor and secretary of state.
The dispute arose Tuesday as dozens of voting centers across Maricopa County — home to Phoenix and the majority of Arizona’s population — experienced printing errors: The ink was not dark enough on some ballots, resulting in voting tabulators failing to properly read the ink and spitting out the ballots without counting them.
Voters who ran into printing trouble had options. They could drop their uncounted ballots in a secure box attached to the tabulators, to be collected and counted at a central processing facility later; some 17,000 ballots were dropped in these boxes, known as “Box 3,” according to the county. Or they could “check out” of their polling place, leave, and try another polling place where the tabulators might have better luck reading the splotchy ballots. But Arizona Republicans have spent years spreading lies about election fraud in Maricopa County, and particularly about the dangers of using drop boxes, which led some voters to try their luck at another polling place. In Arizona, voters aren’t assigned a single voting site and have multiple options within their county.
Here’s the rub: In an unsuccessful lawsuit Tuesday evening seeking to extend voting for three hours, the national Republican Party and several candidates claimed that some poll workers failed to properly “check out” voters who opted to try a different polling place. As a result, when they arrived at the second polling place, the suit alleged, “these individuals remained inaccurately recorded in e-pollbooks as having already voted, and were either (a) required to vote using provisional ballots that will not be counted or (b) denied an opportunity to cast either a regular or provisional ballot.”
There were 7,000 provisional ballots total in Maricopa County — fewer than were issued in 2020, VoteBeat’s Jen Fifield noted. But Republicans could pursue legal action if the margin in an important race is smaller than that, arguing that the number of voters affected by the alleged “check out” issue could potentially change the election results, one Republican attorney said.
“We’re working with the county to determine how many votes are in this bucket, and if it has a potential effect on the outcome of the election, we’ll go back to court and make sure that those voters are treated fairly,” Kory Langhofer, an attorney for Republican Blake Masters’ Senate campaign, told HuffPost.
If it has a potential effect on the outcome of the election, we’ll go back to court and make sure that those voters are treated fairly.Kory Langhofer, attorney for Republican Blake Masters’ Senate campaign
There are still hundreds of thousands of votes left to be counted in Maricopa County — so the dispute over provisional ballots could end up a moot point. The court docket now shows a status conference for next Wednesday, as Capitol Media Services first reported. Langhofer said the hearing would concern whether and how to proceed with a legal challenge — namely, “whether to request a ruling on the provisional ballots at issue due to the failure to ‘check out’ voters.”
It’s also not clear how many ballots out of 7,000 provisionals could be related to the printing error and subsequent confusion over “checking out.” That’s part of the problem.
“Balancing the numbers in the vote centers where voters checked in, but left without casting a ballot nor getting ‘checked out’ will be difficult to reconcile,” said Tammy Patrick, senior adviser for elections at Democracy Fund and a former election official in Maricopa County. “There isn’t a process in place that allows for a voter whose record is flagged as having voted to dispute that and have their provisional count.”
During Tuesday’s hearing over the GOP’s effort to extend voting hours, Maricopa County Superior Court Judge Tim Ryan rejected the GOP’s request, saying, “The court doesn’t have any evidence that any voter was precluded from their right to vote.”
Thomas P. Liddy, chief of the Maricopa County Attorney’s Office’s civil division, similarly told HuffPost in an email, “We have no evidence that any voter who check-in to a vote center, chose not to vote and left the vote center without checking out.”
Liddy said such a situation was possible but unlikely.
“All of the poll workers were very well trained,” he said. “They know how to ‘check-out’ voters who Check-in, but then decide not to vote. It is part of the training class and it is in the training manual kept in the polling place.”
But Langhofer pointed to signed declarations from voters that he said showed otherwise.
“The inspector was confused and did not understand what I meant by ‘check out’ or ‘check in,’” said one voter cited in Republicans’ suit. Another claimed they saw voters ask to have their ballots spoiled so they could vote elsewhere, but that those individuals “were not instructed to ‘check out.’” Two voters, Nancy and Bill Mason, claimed they weren’t instructed to “check out” of their initial polling place after running into printer problems, and that they were unable to cast a ballot at a second location. Ultimately, they claimed they were only able to vote using provisional ballots.
“These people need to go to jail for what they did,” Bill Mason told HuffPost, noting he’d been escorted by police from the first polling place “because I wouldn’t leave, and I kept saying, ‘The election is rigged, that’s how you’re rigging it!’”
I wouldn’t leave, and I kept saying, ‘The election is rigged, that’s how you’re rigging it!’Bill Mason, Maricopa County resident who voted on a provisional ballot
There’s a clear irony in the situation: Had these voters trusted Maricopa County to truthfully tally their ballots, they may have simply opted to drop their ballots into “Box 3” to be counted by human beings at a central location. But voters primed by Republican disinformation didn’t trust that process.
“I don’t trust it to go in the box, the box may never make it down there!” one woman can be heard saying in an early viral video taken at a voting site with printer errors. “That happens all the time.”
Langhofer — who represented the GOP-controlled Arizona Senate during the bunk “audit” of Maricopa County’s 2020 election results, and represented the Trump campaign in Arizona before that — defended voters who might not trust the county’s human ballot-counters.
“Certain voters have heard about all of the concerns in election administration, and want to watch their ballot go into the tabulator,” he said.
Liddy, the Maricopa County attorney, pointed out that every voter had an opportunity to drop their ballots in “Box 3” if they were having tabulator issues. What’s more, he said, there are provisional ballots cast in every election.
“Was the voter provided a ‘reasonable opportunity to vote’ — that is the legal standard. The answer is YES,” he said. “Moreover, every affidavit provided by the RNC is signed by a person who voted.”
Mason, for his part, said he wanted to see his ballot tabulated “right then and there,” citing concerns about Maricopa County rigging elections. He pointed to MyPillow CEO Mike Lindell, who for years has spread lies about election rigging, to explain why he didn’t want to drop his ballot in a secure box at his first polling place to be counted later at a central tabulating location.
“When it gets dropped in the box, that’s how they fix the election,” he said. “We don’t know where those ballots go or who’s counting them.”
This article originally appeared on HuffPost and has been updated.
