By Howard Fischer
Capitol Media Services
PHOENIX -- Secretary of State Katie Hobbs is trying to do what the head of the Arizona Republican Party considers an end-run around a U.S. Supreme Court ruling about when votes can be counted.
Hobbs is proposing to require county officials to count votes for certain offices even if the person shows up at the wrong precinct. So votes for president and statewide offices would be tallied despite being cast at the wrong polling location.
The move comes less than three months after the nation's high court rejected a bid by the Democratic National Committee to actually force the state to count such out-of-precinct votes. The majority concluded that there is nothing legally wrong with the current practice of discarding such ballots.
But Bo Dul, the general counsel under Hobbs, said the ruling does not preclude her boss from changing the rules.
"There's nothing in statute that requires these ballots be rejected,'' she told Capitol Media Services. What there is, Dul explained, is a provision in the current Election Procedures Manual which says only those ballots cast in the correct polling place be counted.
It effectively was that policy that the Democrats unsuccessfully asked the Supreme Court to declare unconstitutional based on claims that is more likely to affect minority voters.
Dull said that manual is something that state law requires the secretary of state to create. More to the point, she said that since the prohibition on counting those ballots exists only within the manual, Hobbs is free to change it.
Hobbs aide Murphy Hebert defended the move.
"It simply ensures that ... eligible voters who accidentally go to the wrong polling place are not completely disenfranchised solely for that reason,'' she said.
The change Hobbs is proposing would take effect next year, when she is running for governor as a Democrat.
At issue is what happens when people show up at polling places on Election Day and their names are not on the list of those registered to vote there.
That isn't an issue in much of the state where counties have setting up "voting centers'' where anyone from anywhere in the county can cast a ballot. Technology makes it possible to print a ballot specific to that voter -- right down to local and school board races -- on site.
But five Arizona counties -- Pima, Pinal, Mohave, La Paz and Apache -- still retain precinct-based voting.
If the would-be voter is simply at the wrong place, poll workers can direct them to where they need to go. But voters who insist they are registered and entitled to vote there are given a "provisional ballot.''
After other ballots are counted, county election officials go through their records to see if that person was entitled vote at the place. If not, the ballot is not counted -- even if the vote is for a race that also is on the ballot of where he or she should have gone in the first place and was legally entitled to vote.
That's what Hobbs, a Democrat, seeks to change.
So if a voter from, say, Marana, shows up at a South Tucson precinct, any vote for a legislator from the area would not count. But any vote for president, governor or any statewide officer would be tallied.
But Eric Spencer, a former state elections director under Republicans, said Hobbs and Dul are guilty of "historical revisionism.''
He pointed out that U.S. District Court Judge Douglas Rayes, who first ruled against the Democrats, concluded that precinct-based voting is part of state law. What that means, Spencer said, is that the secretary of state cannot simply decide on her own to allow the counting of out-of-precinct votes.
Legal issues aside, the move is drawing an angry reaction from state GOP Chair Kelli Ward.
"Katie Hobbs is trying to run an end-run around current Arizona election laws,'' she charged.
Ward said Arizona law is based on a "precinct-based voting model.'' And she said the Supreme Court ruling effectively upheld those statutes.
Instead, Ward said in a prepared statement that the change would effectively turn every polling place into a de-facto voting center, something used in some counties where voters from anywhere in the county can go to any of these locations. And she clearly isn't a fan of even that practice.
"Precinct-based voting is essential to election integrity,'' Ward said.
But Hebert said there is no reason that residents of the counties with precinct-based voting should end up losing out on their right to vote simply because they ended up at the wrong polling place.
Dul said her office checked with election officials in the affected counties.
"The agreed it would not be a significant burden,'' she said.
That leaves the legal issues -- and what Hobbs contends is her ability to make such changes.
There is no question but that elections have to be run in compliance with the statutes approved by the legislature. So, for example, Hobbs has no authority to determine the hours that polls have to be open.
Dul pointed out, however, that there's something else in state law.
"It explicitly directs the secretary to spell out rules for counting and tabulating ballots,'' she said, something that would include procedures for counting out-of-precinct ballots. And the place those rules are spelled out, Dul said, is the Election Procedures Manual.
That manual, which runs hundreds of pages, addresses the more detailed elements of how elections are supposed to be run.
For example, one section deals with setting up voting locations, right down to saying that the U.S. flag must be displayed. It also gets in to what instructions that have to be given to voters, legal standards for certifying election equipment, and ensuring accessibility at voting locations.
"It's her responsibility to create the draft procedures manual,'' said Hebert. She said the Supreme Court ruling, while refusing to mandate that counties count out-of-precinct votes, never addressed the Election Procedures Manual.
And Hebert said that, Supreme Court ruling or not, her boss sees no reason to take the issue to state lawmakers rather than acting on her own as she believes the law permits.
But Hobbs has one other legal hurdle.
She is required to submit any changes by the end of this month to both Gov. Doug Ducey and Attorney General Mark Brnovich, both Republicans. And they have until the end of the year to approve or reject the revisions.
In filing suit to force out-of-precinct votes to be counted, the Democrats argued to the Supreme Court that there is no reason not to count the votes that would be legal if cast in the right place, like for president or statewide office. But Justice Samuel Alito, writing for the majority, said that "would complicate the process of tabulation and could lead to disputes and delay.''
Alito also said that Arizona makes accurate precinct information available to all voters, including a sample ballot sent to each household which identifies the polling location. And he said there is a website to provide voter-specific polling place information.
Finally, the justice said that voting necessarily requires some effort and compliance with some rules.