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How early ballots are checked, counted at issue in court

A worker carries ballots to be verified at the Maricopa County Recorder's Office Thursday, Nov. 8, 2018, in Phoenix. (Ross D. Franklin/AP)

A worker carries ballots to be verified at the Maricopa County Recorder's Office Thursday, Nov. 8, 2018, in Phoenix. (Ross D. Franklin/AP)

PHOENIX — A legal bid by Republicans to change ballot-counting procedures may be too late to help any of their candidates in close races.

Maricopa County Superior Court Judge Margaret Mahoney on Thursday rejected a request by attorney Brett Johnson to force four counties to segregate out the early ballots turned in on Election Day whose signatures apparently did not match what was on file in county offices.

Johnson does not dispute that election officials are free to contact voters to see if there’s an explanation, like a change in signature over time or perhaps even an illness. But he contends that process has to stop at 7 p.m. on Election Day — even for people who submitted their early ballots that day.

Separating them out allows Johnson to then argue to Mahoney Friday, Nov. 9, that they should not be counted.

But Colleen Connor, a deputy Maricopa County attorney, told Mahoney that while the envelopes of those questioned early ballots remain available, the actual ballots that were inside already have been removed — and already added to those being counted. She said there is no way to once again match up the ballots with the envelopes they were in should she rule that they should not have been counted.

And Daniel Jurkowitz, representing Pima County, said there’s no authority in Arizona law for her to grant what Johnson wants.

“The court doesn’t have jurisdiction to input new election procedures in the middle of an election,’’ he said.

Jurkowitz also said there’s no legal basis for the GOP lawsuit.

He said the language allowing county election officials to verify questioned signatures on late-submitted early ballots is permissive. That’s why some counties do it and some do not.

More to the point, he said there is nothing in Arizona law requiring any verification to stop when the polls close.

“If plaintiffs want a deadline of 7 p.m. on Election Day to cure signatures on early ballots, they should seek a statute or regulation designating such,’’ he told the judge.

Mahoney’s rejection of Johnson’s request to segregate out ballots means that officials in Pima, Maricopa, Coconino and Apache counties are free to continue contacting people in a bid to be sure their votes are counted.

What makes that significant is the four counties represent places where Democrat Kyrsten Sinema is out-polling Republican Martha McSally in the race to succeed Jeff Flake in the U.S. Senate. They also are counties where voters chose Democrat Kathy Hoffman over Republican Frank Riggs for state schools chief.

By contrast, officials in the state’s other 11 counties — virtually all of which have Republican voter registration edges and produced more votes for McSally and Riggs than their Democratic foes — do not contact voters when signatures do not match on ballots turned in on Election Day and do not count the votes inside.

Johnson contends that disparity among the counties is unconstitutional.

“By arbitrarily counting and rejecting ballots from identically suited voters, defendants are systematically denying certain voters the right to vote in violation of the Equal Protection Clause,’’ he is arguing.


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