Feathered Bastard

Paul Penzone (Video), Rich Carmona Still in Play, and the Problem with Provisionals (w/Update)

Dennis Gilman and I talk to Penzone following his concession

Above is a video from election night of Democrat Paul Penzone, shortly after he conceded in the sheriff's race to Joe Arpaio. Needless to say, Penzone looks like he's been through the proverbial ringer.

I know there are those who disagree with his decision to concede. However, I think you can tell from this video that Penzone is sincere, and he made what he thought was the best decision.

Also, all bets are off if the numbers change. It's not like Penzone's concession is an oral contract. It's merely gesture, nothing more. The votes still get counted.

See also: -Ken Bennett Says 602,334 Votes Left to Be Counted Statewide -Maricopa County's Number of Remaining Ballots Unknown

"If a miracle happens, I'm a believer," he explained last night, "I believe in the Lord. Then we'll celebrate. Right now, I want to do the respectful thing, let my supporters go home, have some closure tonight. And if for some reason, we have a turn of events, we'll come right back here and celebrate it."

Which sounds like a solid plan, with 415,000 votes left to count in Maricopa County, 115,000 of them being provisional ballots.

Still, the gap between Penzone and Arpaio may narow, but is likely too deep of a hole to dig out of.

The county counted more than 44,000 ballots yesterday, but the numbers in the Penzone-Arpaio race have not budged by much. Currently the spread there is 9.48 percentage points.

It's a different story when it comes to the Rich Carmona v. Jeff Flake U.S. Senate contest, where Flake is up by a mere 79,867 votes, or 4.8 percent.

Republican golden-boy Flake must be sweating big ol' bullets right now. Yesterday, the Arizona Secretary of State's Office announced that there are more than 600,000 provisional and early ballots remaining statewide to be counted.

According to one of the savviest political experts I know, Democrat and former legislator John Loredo, Carmona could make up that gap with that's left to count, especially considering that many of the "late" ballots turned in at the polls will tend to be Democratic.

(Seems Republicans mail in their early ballots right off the bat, being the goody-two-shoes they are, while Dems tend to cogitate a bit before sending them in or dropping them off.)

"I think he's still in it ," Loredo told me of the Carmona race. "We'll know in the first couple of days what the trend is."

Loredo believes the late and provisional ballots "should break Carmona's way," and that the gap is narrow enough for Carmona to overcome.

I've been geeking-out a bit lately on provisionals. According to a policy paper published in 2010 by the ACLU of Arizona entitled Uncounted Votes: How Arizona Law Impacts Provisional Ballots, one in 14 Maricopa County voters, 99,826 in all, cast provisional ballots in the 2008 presidential election.

The report indicates that voting provisionally is, "an option guaranteed in the Help America Vote Act of 2002...meant to help voters who arrive at the polls and are not on the list of registered voters."

Unfortunately, the ACLU found that more than 30 percent of those provisionals were tossed for one of four reasons:

"(1) the voter did not have proper identification; (2) the voter was ineligible to vote; (3) the voter provided incomplete information; or (4) the voter was in the wrong polling place."

In Maricopa County, the report indicates that of those 99,826 ballots, 29,531 were rejected, or nearly 30 percent. The number one reason? Ballots being cast in the wrong precinct.

The ACLU faults an Arizona law, ARS 16-584B, requiring that provisional ballots be cast in the precinct where the voter resides. Several other states have similar laws, according to the report.

The effect of the statute, according to the ACLU, is the disenfranchisement of citizens eligible to vote, but whose provisional ballot mistakenly was cast in the wrong precinct.

Someone could be affected if they've moved or if their precinct changes for another reason. Also, poorly trained poll workers may not direct them to their new precinct.

"Voters who show up at their old precinct may encounter difficulties in determining their correct precinct," reads the report, "and poll workers may find it easier to simply give the person a provisional ballot without realizing that the elector will be disfranchised as a result."

The ACLU also observes that, "poor people, and consequently, minority communities, are more likely to move than the non-Hispanic White population, and that the majority of moves among Blacks and Latinos are within their present county of residence."

The report quotes University of Iowa Professor Douglas W. Jones, a computer scientist whose expertise is electronic voting, as stating that provisional ballots, when misused, can "become a way to brush off troublesome voters by letting them think they have voted."

Similarly, Arizona's law requiring photo ID at the polls also has the effect of discouraging citizens from voting. For that requirement, one of the strictest in the nation, we can thank Prop 200, passed in 2004, which was placed on the ballot through the efforts of nativists such as recalled, former state Senate President Russell Pearce.

If the numbers from county elections and this report are accurate, there was a 15 percent increase in provisional votes cast in Maricopa County in this election.

Ann Wallack, chair of the Maricopa Democratic Party, has been monitoring the election along with other Democratic party officials.

I asked her if redistricting and district consolidation might have caused an increase in the provisionals, as the number of county voting precincts went from more than 1,000 to a little over 700 in 2011.

Wallack told me she and other Democratic Party members had anticipated problems because of the consolidation.

"I knew there were going to be a lot of people that were not sure of where their polling place was," she said. "Even though everyone gets sent something in the mail that says that you live in a new district, here's where you're polling place is.

"People don't pay attention to that until they have to, so we've been answering questions and calling people and telling people where to vote for weeks...So [on Tuesday] I think it's quite possible that people may have gone to their old polling place, not knowing that maybe they have a new polling place."

If a poll worker knows his or her stuff, they should direct the person to the new polling place. Because if someone votes provisionally at the wrong polling place, the vote doesn't count.

Another issue: Someone could have asked for an early ballot, but maybe they didn't get it, or simply decided not to vote that way, and so had to vote provisionally.

However, Wallack was concerned about "specific complaints about how some people were treated," which the party will be investigating.

"When we heard of something that was particularly egregious, we sent somebody out [to the polling place," she explained. "And we also informed county elections immediately and they too would send somebody out."

The county and the state should update their numbers late this afternoon.

One last note, the Associated Press is reporting that initial figures indicate turnout is down nationwide from 2008.

In Maricopa County, so far, there appears to be a decrease percentage-wise, though small.

According to the SOS's county-by-county canvas, in 2008, 1,380,571 votes were cast in Maricopa County.

My unofficial count of votes cast in the county this year added to those remaining to be counted is 1,347,519, a 2.39 percent decrease. (Keep in mind that the county has not released its turnout estimates.)

This seems counter-intuitive, considering how well Latinos have been mobilized in 2012.

But 2008 was a record year, with what was to be the election of the nation's first African-American president, and a native son, U.S. Senator John McCain at the top of the ticket. That might explain the dip here in-county.

UPDATE 11/9/12 8:10 AM:

Here are the latest numbers for Carmona vs. Flake from the Arizona Secretary of State:

CARMONA(D) 797,019 45.51% FLAKE(R) 875,794 50.01% VICTOR(LBT) 76,679 4.38%

The difference between the two men now is about the same as it was Wednesday afternoon. Currently 78,775 votes separate them, a 4.5 percent spread for Flake.

Still, there are well more than half a million votes left to be counted. This contest apparently remains in play, for now.

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Stephen is a former staff writer and columnist at Phoenix New Times.
Contact: Stephen Lemons