PHOENIX — The top elected officials of the two major parties are squabbling over election procedures. Hanging in the balance is the ability to vote for people in some nursing homes, hospitals and other places who can’t physically fill out ballots themselves but also can’t have visitors due to COVID-19.
Democratic Secretary of State Katie Hobbs gave her blessing to allowing members of “special election boards” to help people fill out their ballots via telephone or video conference. She said that can be necessary when the facilities do not allow in-person visits, the normal procedure for board members to assist voters, because of COVID-19 restrictions.
But Republican Gov. Doug Ducey, in a letter to Hobbs, says there’s no legal basis for the “experiment” she has proposed.
“These policy changes should be suspended immediately so that Arizonans can continue to have confidence and faith in the integrity of our election system,” Ducey wrote.
Hobbs responded by telling Ducey the procedures were developed “in close collaboration with your staff and the Arizona Department of Health Services.”
Ducey, however, said it is “simply not an accurate representation” that what Hobbs and her staff showed them is what she wants to do.
Also, he said, “They are not election law experts, and do not have the authority to circumvent the legislative process or the election procedures manual process clearly defined by law,” he said.
Late Wednesday the governor upped the ante, asking Attorney General Mark Brnovich, also a Republican, to look into Hobbs’ action.
Hobbs said if Ducey believes such a procedure is illegal — a point she is not conceding — there is a simple remedy: Issue an executive order under the pandemic emergency authorizing this practice where necessary or, alternately, authorizing any other solution to ensure that all Arizonans get to vote.
Ducey has repeatedly used that authority to suspend other state laws.
For example, he declared that medical personnel providing certain assistance during COVID-19 are immune from civil liability for injuries they cause “notwithstanding any provisions of the Arizona Revised Statutes, laws, associated regulations, rules, policies or procedures.” Ducey also directed state liquor agents and police to ignore violations of laws that prohibit restaurants from selling alcoholic beverages to go.
Incumbent Democrat Tom O'Halleran stops by to take questions from our Editorial Board staff.
And he decided to extend the expiration date of driver’s licenses of people 65 and older to protect their health by preventing them from having to visit Motor Vehicle Division offices during the pandemic.
But gubernatorial press aide Patrick Ptak said Ducey won’t do that here because this is different.
“We want to make sure that people have trust in the process and in the officials who are administering this election,” he said.
Ptak pointed out some of the governor’s actions have been challenged in court. He said if someone were to sue over an order allowing video voting in these circumstances, it could end up that these ballots would not be counted. He conceded that would also be the result if people do not get to vote in the first place.
Hobbs acknowledges there is no specific legal authority. But she says these rules were crafted before anyone ever thought about COVID-19 and situations where visitors to nursing homes would not be allowed.
Still, Hobbs says what she is doing is legal, proper, and not prohibited.
“Elections officials have a duty to protect the fundamental right to vote, while upholding our constitution and laws, regardless of the pandemic,” she responded to Ducey.
There are existing procedures to have special election boards, composed of one member of each major party, go to long-term and residential care facilities as well as hospitals or where someone is disabled to help that person vote. What board members do now is meet with the person and fill out the ballot at the voter’s direction.
What Hobbs is addressing is what happens if board members are not permitted to enter a facility due to COVID-19 access restrictions or the voter is not comfortable receiving assistance through direct contact. What’s also required is a statement that the voter “does not have a trusted caregiver, fellow resident, or family member or other third-party with visitation access to provide assistance.”
Hobbs said nothing changes here, with the board still face-to-face with the voter, albeit over a video link, filling out the ballot. And she said having the board in the same facility satisfies the “in-person” requirement, even if they are not in the same room.
Ptak questioned the need to change voting procedures this close to an election. He said the state managed to conduct other elections this year, including the August primary, all without changing procedures.
But Hobbs said there were not the same requests for special election boards coming from nursing homes and elsewhere as there are for the Nov. 3 general election.
Separately, Hobbs is denying a claim by Ducey that she was allowing people to register to vote by telephone. It was fueled by an email to a Ducey aide from Yuma County Recorder Robyn Pouquette.
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