Jones Still Losing to Biggs in Arizona CD5 Race, But Case Exposes Serious Voting Flaw

Christine Jones forced the counting of 18 more votes in Arizona's Congressional District Five race after coming up nine votes short in last week's Republican primary.
Christine Jones forced the counting of 18 more votes in Arizona's Congressional District Five race after coming up nine votes short in last week's Republican primary.
Ray Stern

(UPDATE: It didn't work out too well for Jones. After the new vote count she forced, Maricopa County released the latest count on Friday afternoon — which showed Andy Biggs now leading Jones by 16 votes instead of nine. Jones picked up five votes, Biggs netted 12 more, and Don Stapley received one more. Also, see below for statement from Biggs' campaign.)

The lawsuit against the state by Arizona Congressional candidate Christine Jones has exposed a serious flaw in Maricopa County election policy, and more votes will be added to the total, a judge ruled on Friday.

Jones, who is running in Congressional District 5, sued the state and county after last week's primary election that ended with the former GoDaddy exec trailing Andy Biggs by a mere nine votes.

Maricopa County Superior Court Judge Joshua Rogers ordered that 18 formerly excluded votes should be counted, which could tip the balance in favor of Jones — she just needs 10 votes to take the lead — but the narrow margin still means an automatic recount will take place in a few weeks.

Rogers barred the county from certifying the vote and transmitting the results to the state until the new votes are counted. Officials with Maricopa County didn't immediately return messages seeking comment, but presumably the votes could be counted — and the result known — sometime today. (See update above.) In his ruling, Rogers implied that the county's policy affected votes in all other county races.

Rogers dismissed all but one of the arguments Jones raised in her lawsuit. It isn't fair, the judge agreed with Jones and her lawyers, for county poll workers to fail to inform voters who cast provisional ballots in the wrong voting precincts that their votes wouldn't count.

State law prevents votes from counting if they're cast in the wrong precinct — which makes sense, since there'd be no reason for precincts, otherwise.

When a voter shows up to a polling place in the wrong precinct in Maricopa County, the county's ePollbook instructs workers to direct him or her to the correct precinct. If the voter isn't willing to go to the correct precinct, the instructions say that "the voter may vote provisionally."

This is no "garden-variety" error, Rogers points out.

The manual clearly states that such a vote will not be counted. But poll workers aren't told that or trained on that rule.

Instead, poll workers' instructions suggest "the voter still has a legitimate opportunity to vote, just by provisional ballot," Rogers wrote in his six-page ruling. "Numerous voters who were either told by poll workers that their vote would count, or, by silence, were misled to believe that their vote would count, were disenfranchised."

This latest screwup comes on top of an exciting and controversy-laden election season in Maricopa County and the rest of the state. National pundits continue to see Arizona as an important — or, at the very least, interesting — swing state in the presidential election. In March, the county bungled by opening far too few voting centers for the presidential preference election, resulting in wait times for voters of up to five hours. And last month, a report surfaced that the FBI was investigating the possibility that foreign hackers — Russians, pundits believe — tried to infiltrate voter-registration databases in Arizona, and did infiltrate them in Illinois.

Seven-term county recorder Helen Purcell nearly lost her post because of voter anger in last week's election, managing to edge out fellow Republican Aaron Flannery by 185 votes.

Gilbert resident Kathleen Giebelhausen, one of the 18 voters whose vote will now be counted, let loose a loud "Yay!" and began clapping to herself when New Times told her about the ruling.

"Oh, that's awesome," she says. "Hurray for the little guy!"

Giebelhausen says that on August 30, she went to the precinct where she had voted twice before, only to be told she was at the wrong polling place.

"They said, 'Well, you can vote with a provisional vote,'" she says.

Provisional votes are those that have some kind of perceived problem and typically are scrutinized later to determine whether the voter was eligible — and, therefore, whether the vote should count. Giebelhausen says the poll worker made it seem as though it would be no problem.

But Giebelhausen was in fact in the wrong precinct, meaning her vote wouldn't count. She says she had no clue that would be the case, and didn't realize her vote didn't count until a representative from the Jones campaign knocked on her door on Tuesday. At first she mistook the woman for a solicitor.

"She said something about the voting situation and did I know that my vote was not counted," Giebelhausen says. "I'm like, 'Uh, no.'"

The woman asked if she'd like to make an official declaration on the incident, and even though she didn't know the woman was working for Jones, Giebelhausen agreed. On Thursday, she testified in Rogers' courtroom as one of the witnesses in the Jones lawsuit.

"I was happy to do it," Giebelhausen says. "Why would you go to a facility and vote if it's not going to be counted? It makes no sense."

Giebelhausen declined to divulge whether she voted for Biggs or Jones. But the Biggs campaign certainly wanted to know, she says. She received a phone call on Wednesday night from someone who claimed to be working for Biggs, and who asked whom she voted for.

Jones' campaign consultant, Brian Seitchik, didn't return a call seeking comment for this story.

Biggs' consultant, Adam Deguire, sent the following statement to the news media after Rogers' ruling was published: "We are pleased to see that the judge was not persuaded to count the votes of only Jones supporters. As long as the counting method remains neutral, we're confident that Andy Biggs will prevail after these votes are included. We look forward to beginning the recount process next week after the canvass is completed."

UPDATE 4 p.m. — Statement from Biggs' campaign on new vote count:

"Just as we expected, our lead over Christine Jones increased after the additional eighteen ballots were counted by the County Recorder's office. We almost doubled our lead and now hold a 16 vote advantage, confirming that we ended the campaign with strong momentum behind us. We feel confident this margin will hold during the recount.

"Unfortunately, it now appears that Christine Jones is headed back to court to further delay the voters' will and attempt to find a way to erase her 16 vote deficit. I suppose after losing the election and then losing the lawsuit, she is now hoping that a "third time's a charm."

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"The primary election ended over 10 days ago. It's time to allow the County and State to complete the canvass so we can begin the recount process and unite behind our Republican nominee. The voters in Arizona's Fifth District have chosen Andy Biggs to represent them on the ballot in November and we should honor their wish."

Read Judge Rogers' ruling in its entirety below:

UNDER ADVISEMENT RULING

Following an evidentiary hearing on September 8, 2016, this Court took under advisement Plaintiff’s application for preliminary injunction. The Court has considered Plaintiff’s Motion for Temporary Restraining Order (With Notice) and Motion for Order Setting Hearing on Preliminary Injunction, the memoranda submitted in support thereof and in opposition thereto, and all of the evidence and testimony presented at the evidentiary hearing which took place on September 8, 2016. The Court’s findings are set forth below.

Factual Background
Arizona’s Primary Election was held on August 30, 2016. In the Republican primary race for Arizona’s Fifth Congressional District (“CD 5”), the two candidates with the most votes were Andrew Biggs and Christine Jones. The final count has these two candidates separated by a margin of nine votes out of a total of 50,447 votes cast between them. The Maricopa County Board of Supervisors is scheduled to meet on September 9, 2016 at 10:30 a.m. in order to canvass the returns of the August 30, 2016 Primary Election and deliver the canvass to the Secretary of State.

Plaintiffs allege that the Maricopa County Recorder or her delegates have failed to comply with Arizona law in reviewing and processing certain early, provisional, and conditional provisional ballots cast during the August 30, 2016 Primary Election, which has caused those votes not to be counted. Plaintiffs have asked this Court to issue a preliminary injunction which would enjoin the Board of Supervisors from completing, certifying and delivering the official Maricopa County canvass until all votes required to be processed for voting in CD 5 are counted.

There are four general categories of improper conduct alleged by Plaintiffs: (1) the refusal to allow conditional provisional ballot voters to provide identification within five days after the Primary Election; (2) the rejection of early ballots of voters whose signature on the ballot affidavit purportedly did not match the signature on the voter’s registration form; (3) the rejection of unsigned early ballots by failing to provide an opportunity to cure the defect; and (4) the rejection of provisional ballots cast in the wrong precinct where election officials failed to inform voters that their votes would not be counted if they vote in the wrong precinct.

Analysis
A party seeking a preliminary injunction has the burden of proof to show: (1) a strong likelihood of success on the merits, (2) a possibility of irreparable injury if the injunction is not granted, (3) a balance of hardships weighing in his favor, and (4) public policy favoring the requested relief. TP Racing, L.L.L.P. v. Simms, 232 Ariz. 489, 495, ¶ 21, 307 P.3d 56, 62 (App. 2013) (citing Shoen v. Shoen, 167 Ariz. 58, 63, 804 P.2d 787, 792 (App. 1990). Each of these elements is discussed below.

A strong likelihood of success on the merits
As to each of the first three categories of conduct Plaintiffs allege to be unlawful in this case, the Court finds that Plaintiffs have failed to show a strong likelihood of success.

The Court recognizes that “ ‘voting is of the most fundamental significance under our constitutional structure.’ ” Burdick v. Takushi, 504 U.S. 428, 433 (1992) (quoting Illinois Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979)). “It does not follow, however, that the right to vote in any manner … [is] absolute. Id. Instead, the States retain the power to regulate their elections. As the United States Supreme Court stated in Burdick, “[c]ommon sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections; ‘as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.’ ” Id. (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)). In other words, facilitating the right to vote necessitates express structures and procedures to ensure that this right is exercised fairly, honestly, and orderly.

The Arizona Legislature has created this framework both through the establishment of the relevant statutory scheme, see A.R.S. § 16-101, et seq. and A.R.S. § 19-101, et seq., and, as part of that scheme, by empowering the Secretary of State to create a manual of necessary elections procedures, a manual which is then reviewed and approved by the attorney general and the governor. A.R.S. § 16-452 (2016).

Turning to the specific laws at issue in this case, on the claim that the Maricopa County Recorder has improperly refused to allow conditional provisional ballot voters to provide identification within five days after the Primary Election, Plaintiffs do not argue that the imposition of such a deadline is itself improper. Instead, the issue is merely whether the right deadline provided under the State of Arizona Elections Procedure Manual (the “Manual”) has been utilized by the Maricopa County Recorder. This issue is addressed only in the Manual, which provides in pertinent part:

Conditional Provisional Ballot for No Identification

If the elector does not provide identification as required by ARS § 16-579(A), the elector shall be issued a conditional provisional ballot. The conditional provisional ballot shall be placed in a provisional ballot envelope. The provisional ballot envelope shall indicate that the elector did not provide identification. The poll worker shall notify the elector that he or she must provide identification as required by ARS § 16-579(A) to the County Recorder or to an official deemed acceptable by the County Recorder. The poll worker shall provide the elector with instructions on how, when, and where the elector can provide proof of identification. The proof of identification must be received by the County Recorder's office by 5:00 p.m. on the fifth business day after a general election that includes an election for a federal office or 5:00 p.m. on the third business day after any other election for the provisional ballot to be processed and counted.

Manual p. 153.

Although the election at issue is not a “general election that includes an election for a federal office”, Plaintiffs nevertheless contend that the applicable deadline in this case is the “fifth business day” based upon the language of A.R.S. § 16-401. The Court does not agree.

A.R.S. § 16-401(A) provides:

A primary election shall be held, the voters shall vote therein, the method of voting shall be followed, the votes shall be counted and canvassed, the returns shall be made, all in the same manner as provided for a general election and shall otherwise conform to the laws governing general elections except as otherwise specifically provided. All provisions of other laws governing elections not in conflict and including registrations and qualifications of voters are made applicable to and shall govern primary elections.

A.R.S. § 16-401(A) (2016). Despite Plaintiffs’ arguments to the contrary, this language does not result in the application of the fifth business day deadline set forth in the Manual to a primary election. While a primary election will generally “conform to the laws governing general elections” this is only true when not “otherwise specifically provided.” In this case, pursuant to the power granted her by the Legislature, the Secretary of State has otherwise specifically provided in the Manual.

The fifth business day deadline applies only to a specific type of election, i.e., a “general election that includes an election for a federal office”. The “third business day” deadline applies to “any other election”. By its plain terms, this would include primary elections as well as general elections which do not include an election for federal office. This conclusion is confirmed by the Manual itself. The Manual contains a schedule of events which were specific to the elections of 2013 and 2014. In relation to the primary election of 2014, the “last day for identification verification for conditional provisional ballots” was stated to be August 29, 2016, which is expressly identified as “3 business days” following the election. Manual p. 250. The Manual similarly states that the “last day for identification verification for conditional provisional ballots” for the November 5, 2013 general election, which presumably did not include an election for federal office, was November 8, 2013, which is again expressly identified as “3 business days” following the election. Manual p. 240. For all these reasons, the Court finds that Plaintiffs have failed to show a strong likelihood of success on this issue.

As it pertains to the signature mismatches, Arizona law requires the County Recorder to “compare the signatures thereon with the signature of the elector on his registration form.” A.R.S. § 16-550 (2016). This process is an essential procedural safeguard to prevent fraud and ballot tampering. Reyes v. Cuming, 191 Ariz. 91, 93, 952 P.2d 329, 331 (App. 1997). See also Ariz. Const. art. VII, § 12 (“There shall be enacted registration and other laws to secure the purity of elections and guard against abuses of the elective franchise.”). For these same reasons, the early ballot voter is statutorily required to “complete and sign the affidavit”. A.R.S. § 16-548 (2016).

These laws, like all election regulations, have an impact on the right to vote, but it can hardly be said that the enforcement of the laws at issue unconstitutionally burdens or interferes with the rights of voters. These laws do not place severe restrictions on the rights of Arizona voters but instead imposes only “’reasonable, nondiscriminatory restrictions’ upon the First and Fourteenth Amendment rights of voters [and, as such], ‘the State's important regulatory interests are [] sufficient to justify’ the restrictions.” Burdick, 504 U.S. at 434. This is especially true in light of the evidence of certain policies which have been fairly, uniformly, and equally implemented by the County whereby those voters whose either did not sign the affidavit or their signatures do not match their registration form are contacted and they can then sign or their signature can be verified. For these reasons, the Court finds that Plaintiffs have failed to show a strong likelihood of success on the signature mismatches and unsigned ballots as well.

The final category, i.e., the rejection of provisional ballots cast in the wrong precinct where election officials failed to inform voters that their votes would not be counted if they vote in the wrong precinct, presents a different problem. The issue is not the State's policy of rejecting all provisional ballots cast by voters at the wrong precinct.  Indeed, Plaintiffs do not appear to contest the constitutionality of this policy or otherwise disagree with the significant interest of the State in maintaining such a policy generally.  What Plaintiffs argue is unconstitutional is the application of this policy in those circumstances where the ballot was disqualified based on poll worker error.

While the Court agrees with Defendants that “garden variety” errors do not rise to the level of a deprivation of constitutional rights, the Court does not believe that the nature of the poll worker error in this case is can be accurately described as “garden variety.”  Instead, the error is the result of a uniform procedure implemented by Maricopa County in instructing voters who are in the wrong precinct.  This procedure is set forth in Maricopa County’s ePollbook, which instructs the poll workers how to direct each voter.   Relevant to these circumstances, it specifically tells poll workers: “Direct voter to correct precinct. Is voter willing to go to that precinct? If not, the voter may vote provisionally.” Such a provisional vote will never be counted, see Manual p. 185, but there is nothing in this directive that advises poll workers of this fact. To the contrary, these instructions in the ePollbook suggest that the voter still has a legitimate opportunity to vote, just by provisional ballot.  The testimony presented at the hearing also confirms that the fact such a provisional vote will never be counted is something unknown to the poll workers and they do not receive any training which either informs them of this fact or advises them to tell the voters that their vote will not be counted if cast in the wrong precinct. As a result, numerous voters who were either told by poll workers that their vote would count or, by silence, were misled to believe that their vote would count, were disenfranchised.

Because of the systemic nature of the policy of the County, the Court finds that the burden on Maricopa County voters is severe. Further, the Court finds an absence of a legitimate interest on the part of the County defendants to not tell voters in the wrong precinct that a provisional vote cast in the wrong precinct will not be counted, a fact of which County officials are well aware. Again, while the Court recognizes the legitimate interests in maintaining the precinct-based election system and rejecting ballots cast in the wrong precinct generally, Defendants do not show how these interests support the specific restriction in this case, i.e., the rejection of wrong precinct ballots where based upon a policy of not advising voters in the wrong precinct that a provisional vote cast in the wrong precinct will not be counted. See Ne. Ohio Coal. for Homeless v. Husted, 696 F.3d 580, 597 (6th Cir. 2012).

In the absence of such an interest, the Court finds that Plaintiffs have shown a strong likelihood of success on their equal protection claim on this issue.

Irreparable injury not remediable by damages if the requested relief is not granted
The Court finds that irreparable injury will occur in this case if an injunction is not granted on the sole issue discussed above. Such disenfranchisement cannot be remedied by law and the failure to include these votes may affect the outcome of this election in light of the narrow margin at issue.

Balance of hardships
To meet the burden showing that the balance of hardships favors it, Plaintiffs “may establish either 1) probable success on the merits and the possibility of irreparable injury; or 2) the presence of serious questions and ‘the balance of hardships tip sharply’” in his favor.” Shoen v. Shoen, 167 Ariz. 58, 63, 804 P.2d 787, 792 (Ct. App. 1990) (quoting Justice v. Nat'l Collegiate Athletic Ass'n, 577 F.Supp. 356, 363 (D.Ariz. 1983)). Plaintiffs have shown both a strong likelihood that they will succeed on the merits against Defendants on the issue discussed previously and that irreparable injury will occur. Therefore, Plaintiffs have established that the balance of hardships favors them on this issue.

D. Public policy favors the requested relief

Based upon the rights affected in this case by the disenfranchisement of voters, public policy favors the requested relief.

Therefore,

IT IS ORDERED that the provisional ballots of the following eighteen (18) individuals be processed and counted by the Maricopa County Recorder as applicable to the races in each voter’s correct precinct: Tera Allen, Melissa Faust, Kathleeen E. Giebelhausen, James Grimes, Lisa Wieduwilt, Robert J. Wieduwilt, Jose Smith, Adam Wallace Albright, Mark Allen Atkins, Thomas Roger Barnhart, Ken Raymond Bisso, Tyler Jonathan Brown, Kathe Luise Crawford, James David Cronk, Dawn Marie Homan, Kristian James Homan, Rhoda Kimball, and Harold R. Wearne.

IT IS FURTHER ORDERED that the Maricopa County Board of Supervisors is prohibited from canvassing the results of the August 30, 2016, Primary Election, or delivering those results to the Secretary of State, until the votes referenced above are counted.

IT IS FURTHER ORDERED that all remaining relief requested by Plaintiffs is denied.

/s/ HONORABLE JOSHUA ROGERS


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