A dispute over 130 provisional ballots in the Congressional District 2 race has been resolved by both sides agreeing to count the votes for now but maybe uncount them later.
The lawsuit filed Tuesday in Cochise County Superior Court by a supporter of Republican candidate Martha McSally is the latest twist in what is turning into a marathon vote-tabulation process that is threatening to last right up to the legal deadline of Nov. 26 before some close races are decided.
In Pima County, Elections Director Brad Nelson said Monday his office had 4,000 more early ballots to count. But on Tuesday, the office put out a news release saying it had counted 5,500 early ballots that day and had another 1,500 to go. That's in addition to more than 26,000 uncounted provisional ballots.
Nelson said the number of ballots remaining has been a moving target because the Recorder's Office, after announcing it had handed over all the early ballots last Friday, has continued to deliver more.
In Cochise County, where more than 9,000 ballots remain to count, Tuesday's lawsuit alleged election officials failed to properly seal the 130 provisional ballots in envelopes.
But before a judge could render a decision, the lawyers for the parties involved reached an agreement to count the ballots but set them aside just in case the margin between McSally and Democrat Ron Barber is close enough to warrant a second look, according to attorney Eric Spencer, who represents the McSally supporter who filed the lawsuit.
Spencer classified the agreement as a victory for honest elections.
"We're very pleased with the outcome because we shined a light on what we thought was a pretty important issue of ballot integrity," Spencer said.
The Barber campaign considered the lawsuit a blatant attempt to disenfranchise minority voters in a district in Douglas with a large Hispanic population.
"Throwing away the votes of Southern Arizonans is wrong and unacceptable," Barber campaign manager Jessica Floyd said in a news release.
Floyd said the Barber campaign was pleased that Cochise County election officials will be allowed to count the votes, but was troubled by how the McSally campaign is injecting itself into the process.
"We remain disappointed that Martha McSally's Republican attorneys attempted to insert themselves into the vote-counting process," Floyd said. "We will be watching the process closely moving forward."
Daniel Scarpinato, spokesman for the National Republican Congressional Committee, said the suit wasn't to interfere with voters' rights, but to protect them.
"Every voter has the right to an election that is free of ballot tampering," Scarpinato wrote in an email. "With today's outcome, all legally cast ballots will be counted while at the same time safeguarding the accuracy of the result."
Barber held a slight 800- vote lead over McSally Tuesday evening.
A notice Tuesday afternoon from Secretary of State Ken Bennett said there are more than 324,000 early and provisional ballots to be verified and counted statewide.
State law requires ballot verification to be complete by Nov. 16, and the tabulation to be done by Nov. 26. County election officials have said they will be hard-pressed to meet that deadline.
Nelson said he hopes to start counting the first of more than 26,000 provisional ballots on Thursday - a task he would have liked to start sooner, but was delayed by the continuing deliveries of early ballots.
Pima County Recorder F. Ann Rodriguez "put out a release saying that she had completed all of the early ballots and handed them to Elections, about 256,000 (ballots)," Nelson said. "We are continuing to get early ballots and have received more each day so that number keeps sliding up a little bit more."
Since Friday, he said, he has gotten nearly 4,600 additional early ballots, "and I'm expecting some more."
Nelson said while it's a good thing all ballots are being counted, he can understand people's frustration with the constantly fluctuating numbers.
Just don't place all the blame on his office, he said: "I'm kind of at the mercy of the recorder."
"We're very pleased with the outcome because we shined a light on what we thought was a pretty important issue of ballot integrity."
Eric Spencer, attorney
Contact reporter Darren DaRonco at 573-4243 or firstname.lastname@example.org