By Howard Fischer
Capitol Media Services
PHOENIX -- An attorney for the state asked a federal appeals court Wednesday to let Arizona refuse to count early ballots that voters forgot to sign initially and did not fix by election night.
Assistant Attorney General Drew Ensign did not dispute that current law gives those whose signatures do not match up to five days after the election to "cure'' the problem. That distinction is what caused U.S. District Court Judge Douglas Rayes to last year declare that it is illegal to deny the same ability to those who did not sign the ballot at all.
But Ensign told a three-judge panel of the 9th Circuit Court of Appeals that Arizona lawmakers are entitled to have stricter rules -- and an earlier deadline -- for those who neglect to sign at all.
In striking down the deadline last year, Rayes did agree to stay his original order. That kept the current deadlines in place for the 2020 election.
Now the question is what rules will govern the 2022 vote, the one at which all statewide offices are up for grabs along with what is expected to be a close race for the U.S. Senate.
And that is why the Arizona Democratic Party is trying to keep the extended deadline in place -- and why the state, joined by the state and national Republican parties, wants to return to the election night deadline.
There are not a lot of ballots at issue. In 2018, for example, just 2,435 ballots statewide were rejected because they arrived in unsigned envelopes and the voters never made the trip to county election offices by 7 p.m. on Election Day to "cure'' the problem.
Attorney Elisabeth Frost representing the Democrats told the judges that giving the extra time would impose only a minimal burden on election officials. And she pointed out that both Secretary of State Katie Hobbs and recorders from most counties said they saw no problem with providing voters the extra five days.
The outlier was Pima County where Chris Roads, who was the deputy recorder, who provided statements that it would create a significant administrative burden. He said it would require staffers to locate the unsigned ballot, something that can be handled only with workers of two different parties present.
But Rayes, in his ruling last year, brushed that aside.
He noted that Pima County rejected just 75 ballots in 2018 due to a missing signatures. The judge said that doesn't qualify as a significant enough burden to justify the election night deadline and deny someone the "fundamental right'' to vote and have it counted.
Frost also argued that an unsigned ballot is the functional equivalent of someone showing up at a polling place on Election Day without the proper identification. In that case, she said, the voter is given five days to provide the necessary ID to ensure the completed ballot is counted.
But Judge Susan Graber said she's not buying that comparison.
"They're not fully completed,'' the judge said of the unsigned ballots.
"That's the problem,'' Graber continued. "If they were fully completed, we wouldn't be having this conversation.''
Ensign, for his part, urged the judges not to buy the argument that those who forget to sign their ballots should be given the same opportunity to fix the problem as those whose signatures did not match what county officials have on file.
"With signature mismatches, it typically is not the fault of the voter whatsoever, completely with the missing signature which is virtually always the complete fault of the voter,'' he said. Beyond that, Ensign said that signature matching -- the process used by election officials to compare signatures on early ballot envelopes with what is on file -- is "inherently subjective and has rates of error for which there are reasons to have cure periods.''
"By contrast, there is absolutely no evidence in the record whatsoever that Arizona has ever wrongfully determined that a ballot was unsigned when it was, in fact, signed,'' he said.
And Ensign said a mismatched signature can be dealt with by a phone call with the voter to verify that she or he was the one who mailed in the ballot. By contrast, a missing signature requires the voter to go to election officers where workers, one from each party, accompany the ballot and watch the missing signature be put into place.
That, he said, can slow up the process of counties finishing their counting on time.
Daniel Shapiro, representing the Republicans, had other legal theories about why the deadline of 7 p.m. on Election Day is legally valid for unsigned ballots and why those who signatures do not match should get that extra five days.
"Mismatched ballots have long been seen in Arizona to be complete but invalid, making it OK to cure them after the election deadline,'' he told the court.
"But, really, signing an unsigned ballot after Election Day is, in effect, voting after Election Day,'' Shapiro continued. "And there is no right to do that.''
He also called the election night deadline "minimally burdensome.'' He said that fact alone should have resulted in Rayes tossing the original lawsuit and ruling against the Democrats.
Frost, for her part, disputed that the election night deadline imposes only a minimal burden on those who are otherwise legally entitled to vote. But even if the burden is minimal, she argued that Rayes was correct in ruling that is not legally justified.
This case is different than many of the other challenges that have been made to Arizona election laws.
In those cases, the claim has been that the law in question results in disparate treatment based on a what the law considers a "protected class,'' like gender, race or ethnicity. There has been no evidence presented here of such inequity.
But Frost said that still does not entitle the state to come up with differing rules for "curing'' ballots.
The judges gave no indication when they will rule.