By Howard Fischer
Capitol Media Services
PHOENIX -- A last-minute effort to fix state election deadlines to keep Arizonans from losing their voice in the 2024 presidential election fell apart late Monday as Republicans and Democrats could not agree on a plan.
Republicans now are pushing ahead with a plan to change the date of the 2024 primary to late July from August. But Democrats and Gov. Katie Hobbs say is unnecessary to resolve deadline problems created by other changes in state and federal law.
GOP lawmakers also want to enshrine into statute more vigorous signature verification requirements for early ballots.
What is clear is that unless the deadline problems are fixed, one way or another, Arizonans could find that their 2024 electoral votes for president will not be counted as there will not be final results by a Dec. 11 deadline set in federal law.
And the clock is ticking.
To get the big change the Republicans say is necessary -- moving up the state's primary into late July -- there has to be legislative action by the end of this week. That's because that simple change has a domino effect, altering everything else from printing ballots to when candidates have to submit their signatures.
That, in turn, requires bipartisan approval as it takes a two-thirds vote of both the House and Senate, plus the signature of the governor, to take effect immediately.
And Republicans want to enshrine some more vigorous signature verification requirements for early ballots into state law,
Democrats, however, are balking, saying they want a "clean fix'' to the problem, one the said need not alter election dates or other voting laws. And that, they said, means not tinkering with other ideas on the GOP wish list.
But despite being in the minority they are not without power.
It would take a two-thirds vote of both the House and Senate to meet that Friday deadline to change the date of the primary. But Republicans control only a bare majority, allowing Democrats to effectively veto any plan they don't like.
At the root of the problem is a change pushed through the Legislature after the 2020 presidential race in which Joe Biden outpolled Trump here by 10,457 votes. That wasn't enough to force a mandatory recount under the then-existing laws which said the margin of difference had to be less than 0.1%, something that did not happen with more than 3.4 million votes cast.
Then-Sen. Michelle Ugenti-Rita pushed through a measure in 2022 changing the margin to 0.5% -- something that would have triggered a recount. And it's likely to require more recounts in the future.
Only thing is, recounts cannot take place until after the statewide results are certified.
Secretary of State Adrian Fontes said that could leave counties without the results they need after the primary to print general election ballots to be sent to overseas voters to get them back by Election Day. Hence the GOP plan for an earlier primary.
The potentially bigger problem is that federal law now requires states to get their presidential choices to Washington by Dec. 11. And if Arizona is still recounting the vote, the pick of voters here just won't be in the final Electoral Vote tally.
Sen. Priya Sundareshan, D-Tucson, said the simplest thing for the Republicans in charge of the Legislature would be "fixing a problem they created,'' meaning the 0.5% recount margin.
That, however, ignores the fact that the 2022 measure gained bipartisan support. In fact, the legislation was approved by the House on a 50-1 margin, with only Democratic Rep. Stephanie Stahl-Hamilton opposed.
The political reality is that Republicans are not going to support repeal.
So Democrats late Monday offered an alternative: lower the recount threshold -- but only to two-tenths of a percent, a margin that still would not have forced a recount in Trump's loss.
But Republicans want more.
It starts with a provision in HB 2785 to move up the primary by a week, to July 30. That would help resolve the problem with preparing general election ballots.
That is a non-starter with the Democrats, whose HB 2816, also introduced Monday, does not include such a provision.
Then there's fixing the deadline for approval final general election results to get them to Washington on time requires something else.
One quick fix would be to change the amount of time voters whose signatures on early ballots don't match, have to "cure'' the problem.
That is currently five business days. The GOP plan calls for changing that to five calendar days, buying two extra days.
Here, too, that is not in the Democrat proposal.
Rep. Laura Terech, D-Phoenix, said that would require voters whose ballots are questioned to actually go to county election offices to verify that the signature on the ballot envelope actually is theirs.
"Some of the concerns that I've heard expressed about the lack of public transportation on the weekends that might make it a little bit harder for some voters to get that cure,'' she said.
And there's another big sticking point.
The GOP measure includes an entirely new provisions in the Election Code spelling out the kind of signature verification that would have to be done on early ballots. And it is quite detailed.
It would start with an evaluation of the "broad characteristics'' of a signature. That includes the type and speed of writing, overall spacing, position of the signature, and spelling and punctuation.
If those seem to match, the ballot would be counted. But if they don't there would be a second check looking at the "local characteristics'' of the signature, things like internal spacing, the presence or absence of pen lifts, beginning and ending strokes, and the curves, loops and cross points.
At that point if there are still doubts, a second person is asked to review. And all that ultimately could result in a declaration of a mismatch and a need to cure.
Gubernatorial press aide Christian Slater said that's a non-starter for Hobbs.
"It's unrelated to the issue that we're facing,'' he said. And there's something else.
"It could lead to a massive increase in the number of early ballots rejected and increased litigation over those ballots,'' Slater said, further delaying getting a final count to Washington.
Anyway, he noted, the governor vetoed identical language last year.
But Kolodin pointed out at the time that what he wants to put into statute -- and what she vetoed -- actually already is required under procedures approved by Hobbs in 2020 when she was secretary of state. He said that is insufficient.
"That is non-binding and can be changed on a whim by a single person,'' he said. "That is hardly democratic -- or sober and responsible governance.''
Republicans have been complaining about the signature review process for years.
In 2020 Kelli Ward, who at the time chaired the Arizona Republican Party, filed suit claiming it lacked sufficient safeguards to ensure that they actually came from the registered voters whose envelopes were submitted.
Maricopa County Superior Court Judge Randall Warner dismissed the claim, pointing out that a forensic document examiner hired by Ward's attorney reviewed 100 of those envelopes.
At best, the judge said, the examiner found six signatures to be "inclusive,'' meaning she could not testify that they were a match to the signature on file. But the judge also noted the witness found no signs of forgery.
Jump to 2022 when Lake sought to overturn her 17,117-vote loss to Hobbs with claims that there is no way Maricopa County verified the signatures on early ballots. Her expert witness said the records showed that those employed by the elections department compared the signatures on 321,945 envelopes with voter registration records, using computer screens, in less than three seconds -- with about 70,000 verified in less than two seconds.
But Maricopa County Superior Court Judge Peter Thompson ruled all that is legally irrelevant.
"There is no statutory or regulatory requirement that a specific amount of time be applied to review any given signature at any level of review,'' he wrote.
And Thompson pointed out that the law allows ballot envelopes to be accepted and opened if the review is "satisfied that the signatures correspond.''
"The question after the comparison is whether the signatures are consistent to the satisfaction of the recorder, or his designee,'' he wrote. "This, not the satisfaction of the court, the satisfaction of a challenger, or the satisfaction of any other reviewing authority is the determinative qualify for whether signature verification occurred.''
No date yet has been set for a hearing on the Republican plan. And it remains unclear whether GOP leadership will even schedule a hearing on the Democratic plan.
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