A legal bid by Republicans to change ballot-counting procedures — presumably in their favor — may have come 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 of those voters who were allowed to explain why the signature on the outside of the envelope did not match what was on file in county offices.
Johnson contends that the procedures being followed by those counties is not authorized by law. And he wants to be able to have those votes discounted if she rules in his favor.
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 added to those already being counted. And she said there is no way to once again match up the ballots with the envelopes they were in.
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.
Mahoney's rejection of Johnson's request means that officials in Pima, Maricopa, Coconino and Apache counties are free to continue contacting voters in a bid to be sure their early ballots are counted.
What makes that significant is the four counties represent places where Democrat Kyrsten Sinema is outpolling 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.
At last count, the Republicans had a narrow lead in both races. But that could change if the elections officials in all four counties tally the votes of those questioned early ballots
By contrast, officials in the state's other 11 counties — virtually of which have Republican voter registration edges and produced more votes for McSally and Riggs than their Democratic foes — apparently do not follow the same procedure when an early ballot is turned in on Election Day but the signatures do not match. They do not contact the voters but simply toss the envelope aside.
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.
There is another way to fix that: Force the 11 counties to follow the same procedure as the other four and require them to see if those late-turned-in ballots with mismatched signatures could be legally "rehabilitated,'' allowing them to be counted.
But attorneys from some of those counties told Mahoney that, the burden of changing procedures now aside, there are probably too few ballot envelopes to make a difference in the vote tallies.
The judge's ruling complicates efforts by Johnson and the Arizona Republican Party, which has joined the case, to get a ruling in their favor. But Mahoney will give them a chance at a hearing set for Friday.
Central to the dispute is the fact that when county election officials get an early ballot, they are first supposed to see if the signature on the envelope matches the one they have on file.
If not, most counties have procedures to contact the voter and see if they actually were the sender and if there is a reason for the disparity. These could range from a person's signature changing over time to a physical condition that might cause someone's hand to shake.
If everything checks out, the ballot is removed from the envelope and put into the stack to be counted.
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Johnson, in his legal proceedings, said the ability of county election officials to "rehabilitate'' a signature is only optional. More to the point, he told Mahoney the practice is allowed "only if time permits,'' citing a manual of election procedures published by the Secretary of State's Office.
But he said the practice of checking these mismatched signatures is going on in several counties for five days after the election, "a contingency that finds no statutory authorization and threatens to beget an extended period of confusion and uncertainty following the election.''
Johnson said the disparate decisions among county recorders on whether to try to contact voters means some people whose ballots are not counted "are suffering direct and irreparable injury.''
Connor also told Mahoney there's another reason she should toss the lawsuit, filed late Wednesday, out of court.
"This procedure was know prior to the election,'' she said, saying if Johnson and the Republicans had a problem with how those ballots were going to be handled they should have brought the issue to court earlier.
State GOP Chairman Jonathan Lines denied that the lawsuit is a bid to suppress votes from counties where the ballots were coming in more favorably for Sinema and Hoffman.
"We want all 15 counties to adhere to the same standards and timeline in fixing possible signature discrepancies on mail-in ballots,'' he said in a prepared statement. "Voters have rights regardless of where they live."
There was no immediate response from Lines to the question of why the GOP did not file suit until the closeness of the races for U.S. Senate and state schools chief became apparent.
Mahoney may not even get a chance to issue a ruling.
Connor pointed out that Johnson is arguing violations of the U.S. Constitution. And those, she said, should be heard in federal court.
If Mahoney agrees, that will only delay a resolution of the dispute. And that then threatens to violate a state law requiring that there be a formal canvass of election results within 20 days of the vote.
