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Arizona Supreme Court says voters can't be instructed how to fix ballot errors

Arizona Supreme Court says voters can't be instructed how to fix ballot errors

  • Updated

PHOENIX — The state’s high court blocked Maricopa County’s recorder from telling voters how they can correct any errors they make on their ballots.

In a brief order late Thursday, the justices said Recorder Adrian Fontes and his staff “exceeded their authority” in including what amounts to a new instruction.

Chief Justice Robert Brutinel said instructions permitted under both state law and the official Election Procedures Manual have not changed.

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

But Smith declined a request by Public Integrity Alliance to block the instructions from going out. The judge noted that Fontes already had more than 2 million sheets printed with the information to go out with early ballots. Smith said it made no sense, either logistically or financially, to order new ones printed now.

Parents, students, teachers and other concerned citizens protest in support of in-person teaching outside the Pima County Administrator’s Office at 130 W Congress Street on Tuesday evening, Sept. 9, 2020. (Josh Galemore / Arizona Daily Star)

The high court 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.

Those include not just the ballots but also the instructions and envelopes, he said.

“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 said. “And that’s a violation of federal law.”

He said he’s exploring his options. “This has put the voters in a very difficult situation,” said Fontes, a Democrat.

While the ruling technically affects only Maricopa County, it sends a warning to election officials in the other 14 counties that they should not provide similar advice to their 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 said 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 election — and proposing it again for the Nov. 3 general 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, a vote tallied for the intended candidate.

Public Integrity Alliance did not challenge having election officials review ballots by hand when there are extra marks.

Instead, alliance attorney Alexander Kolodin argued 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.

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