Voters Can't Be Instructed on How To Fix Ballot Errors, AZ Supreme Court Rules

Sep 10, 2020

By Howard Fischer
Capitol Media Services
 

PHOENIX -- The state's high court late Thursday blocked Maricopa County Recorder Adrian Fontes from telling voters how they can correct errors they make on their ballots.
In a brief order, the justices concluded that Fontes and his staff "exceeded their authority'' in including what amounts to a new instruction.

Chief Justice Robert Brutinel acknowledged that some state election laws have changed. But he said what are permitted instructions under both state law and the official Election Procedures Manual have not.
 

That finding by itself is not a surprise. Earlier this week, Maricopa County Superior Court Judge James Smith concluded it was likely that, after a full-blown trial, that what Fontes was doing would be found illegal.
 

But Smith refused to grant a request by the Public Integrity Alliance to block the instructions from going out, pointing out that Fontes already had printed up more than 2 million sheets with the information to go out with early ballots. The judge said it made no sense, either logistically or financially, to order new ones printed now.
The high court on Thursday said, in essence, that's not an excuse to send out illegal instructions.
What happens now is unclear.

Fontes said Arizona law requires that anyone involved in printing election materials must be certified by the state. That, he said, includes not just the ballots themselves but also the instructions and envelopes.
 

"This isn't 'run down to Kinkos and grab a stack of paper,'' Fontes said.
"If I can't get a better instruction approved and printed and stuffed, which I don't know if I can, then I have to send them out without instructions,'' he told Capitol Media Services. "And that's a violation of federal law.''
 

The bottom line, Fontes said, is he is exploring his options.
"This has put the voters in a very difficult situation,'' he said.
While the ruling technically affects only Maricopa County, it sends a warning to election officials in the other 14 counties telling them that they should not be providing similar advice to their own voters.

Central to the issue is that ballots often are kicked out of automated counting systems because of stray marks.

Recorders in various counties have told Capitol Media Services it is normal practice to have these ballots examined by hand to determine a voter's intent.

Fontes took that a step farther, telling early voters in the August primary -- and proposing it again for the Nov. 3 election -- that if they vote for the wrong person they can cross that out and re-mark the ballot. That extra marking would kick the ballot out as an "overvote,'' leading to the hand examination and, presumably, tally a vote for the intended candidate..
The Public Integrity Alliance did not challenge having election officials review ballots by hand when there are extra marks.

Instead, attorney Alexander Kolodin argued that it is illegal to specifically instruct voters they can make these fixes. He said the law and the Election Procedures Manual say voters who "spoil'' a ballot should instead request a new one.