In theory, a judge's ruling on Friday in the lawsuit by Congressional District Five candidate Christine Jones could have meant Purcell's ouster. According to Superior Court Judge Joshua Rogers, up to 728 votes in Maricopa County from the August 30 primary election may have been unfairly trashed.
The intriguing (albeit remote) possibility that a last-minute upset in the recorder's office could have occurred is just one side effect of the ruling in Jones's lawsuit.
County officials say they're taking action after the judge exposed what he called a "systemic" county policy that deprived people of their votes. They'll retrain poll workers and place signage in polling places warning voters that their vote won't count if they cast a provisional ballot in the wrong precinct. Based on testimony in the lawsuit, Rogers found last week that county poll workers had advised numerous people who showed up in the wrong voting precinct that they should cast a provisional ballot, even though those votes wouldn't be counted.
"The weakness in any system is the people running the process. It sounds as if the poll workers were given and/or were giving bad information." — Aaron Flannery, who narrowly lost the race for Maricopa County recorder.
Not coincidentally, one of the demands in a federal complaint filed by the Democratic Party against the state — made in response to Maricopa County's fouled-up presidential preference election in March — is to end the rejection of provisional ballots cast in the wrong precinct. As testimony in Jones's case revealed, the county's policy leads to confusion and lost votes.
Rogers's jab to county officials follows an already-tough year for Purcell and her team. This is the same bunch that brought voters five-hour lines in the March election and, for a special election in May, sent 1.3 million postcards to voters to correct an error in mailed early ballots. The screw-ups are considered largely responsible for Purcell's near loss in the election.
But did she win? The public will never know for sure.
The seven-term politician, whose job includes overseeing county elections, clinched her race against Republican competitor Aaron Flannery by only 185 votes.
Purcell could have ordered that all 728 votes Rogers identified as problematic had to be counted.
But the judge only ordered Purcell to count 18 of the votes — those that were backed up last week by court testimony and declarations from the voters. If Purcell tracked down and counted the other 710, it's conceivable that Flannery might come out on top.
She's not taking any chances. The recorder's office is scheduled to transmit the standing primary election results to the county Board of Supervisors at 9:30 a.m. on Monday for official certification (also known as the canvass), without counting any additional votes.
Besides the the CD5 race between Jones and State Senate President Andy Biggs that sparked the lawsuit, Purcell's race was the only one in the county close enough in the primary for the 728 votes to make a difference.
Flannery, a small-business consultant who has never held public office, downplays the idea that he could have won, saying those few hundred votes would need to defy voting trends to make it happen. But he had some backhanded criticism for Purcell and her administration.
"The weakness in any system is the people running the process," he says. "It sounds as if the poll workers were given and/or were giving bad information."
Through spokeswoman Elizabeth Bartholomew, Purcell denies that her own primary race had anything do with her decision.
"We are taking the advice of our counsel and going ahead with the canvass on Monday morning," Bartholomew says.
The latest flap over rejected provisional ballots began when Jones, a millionaire former GoDaddy exec and gubernatorial candidate, sued the state on September 6 after the final vote tally showed her losing to Biggs by just nine votes. More than 85,000 votes were cast in the four-way GOP CD5 race, which also featured State Representative Justin Olson and former County Supervisor Don Stapley.
Rogers's six-page ruling, whatever its impact on the county, turned out to be a Pyrrhic victory for Jones. He threw out three of her four arguments, and the fourth — the one that forced the counting of 18 more votes — has given Biggs a lead of 16 votes instead of nine. The small difference triggers an automatic recount under state law, so it's not over yet.
In his ruling, Rogers declared that the county had every right to toss ballots with apparent signature mismatches and unsigned early ballots, and to enforce a three-day window for voters to show ID if they cast a provisional ballot because they didn't have ID when they tried to vote on election day.
Provisional ballots are votes that are perceived to have some kind of problem and that are set aside to be reviewed after election day. If officials find that a voter who voted provisionally met all the requirements and was fully eligible to vote, then the vote counts. If not, it's tossed.
But the county has been training poll workers incorrectly on how to instruct voters who show up in the wrong precinct, Rogers ruled.
The county has 724 election precincts under state law and must put a polling place in each one for the primary and general elections. The same law doesn't apply to presidential preference elections, which is why the county — in an attempt to save money — created hours-long lines in March by opening up only 60 polling places.
While the August 30 election featured vastly more polling places than in March, some voters found that their regular polling place had been switched. In fact, the county's election site FAQ section contains the question, "Why does my polling place keep changing?" precisely because such changes aren't uncommon. But they can be frustrating — and may lead to wasted votes.
The county's instruction book for poll workers says that a voter in the wrong precinct should be directed to the right precinct.
"'Is voter willing to go to that precinct?'" the manual states, according to Rogers' ruling. "'If not, the voter may vote provisionally.'"
"Such a provisional vote will never be counted," Rogers ruled. "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."
Bartholomew downplayed the error somewhat, saying it's unclear exactly what poll workers may or may not have said to the voters who cast the 728 rejected provisional ballots. The county doesn't train poll workers to judge whether a voter's provisional ballot will count, she says, adding that the county is following the law by rejecting ballots cast in the wrong precinct.
"We didn't mess up," she says. "We need to look at our poll-worker training, certainly, and update that. "We're definitely going to take this as a lesson."
Poll workers will be told to remind voters that their vote won't count if they're in the wrong polling place, Bartholomew says. New signs will be added in polling places to warn of the potential problem. More "voter education" will occur on the issue, she says.
"For the primary election, we're dealing with about 4,000 poll workers," she says. "They are all human, and sometimes humans make mistakes."
After Rogers's decision, but before Purcell's decision to send the votes for canvass on Monday, Jones's attorney sent Purcell a letter asking her to count all 136 of the affected ballots from voters who voted in the CD5 race. Jones's team had obtained the voters' names via a public-records request following the August 30 election.
"Please note that you do not need a court order to process these additional lawful votes," wrote attorney Joe Kanefield, former state elections director. "You should be guided by your oath and requirements of the U.S. and Arizona Constitutions, which preserve the fundamental voting rights of every voter."
Kanefield pointed out that the error in rejected provisional ballots applied to every voter casting a ballot in the wrong precinct, adding that counting those votes "is the right thing to do."
Kanefield laments to New Times that 18 additional votes "are the only ones we were able to get." He expects to be one of the witnesses for the CD5 recount, which is slated for this week.
The recount will decide whether Biggs maintains his thin lead over Jones, but the issue of rejecting out-of-precinct provisional votes will go on, he says. A still-unsettled portion of the Democratic Party's April federal complaint challenges Arizona's ability to keep rejecting those votes, he notes.
Indeed, the complaint suggests that rejecting the out-of-precinct provisional votes may affect minority voting districts more than others, and also that nearly half of Maricopa County's polling sites change from year to year, leading to confusion.
Kathleen Gielbelhausen, one of the 18 voters identified by Jones' legal research, told New Times last week that when she showed up at her typical polling place, she was told she was in the wrong precinct — but that she could go ahead and vote with a provisional ballot. Only later, when she was contacted by Jones's team, did she learn that her provisional ballot had been rejected.
Gielbelhausen said she felt "deceived" by the voting system.