Ron Barber-Martha McSally Recount to Take Place Without 133 Contested Votes

The 133 disputed votes won't be counted in the congressional race between Democratic Congressman Ron Barber and Republican challenger Martha McSally.

The Barber campaign came up short in its bid to get the votes counted, and state officials approved the election results in a ceremony this morning.

"The Court finds that Plaintiffs have not met their burden to show either likelihood of success on the merits or serious questions going to the merits," Judge Cindy Jorgenson wrote in an order denying a restraining order that would have prevented a certification of the election results. "They have the burden and have not shown a pervasive error that undermines the integrity of the vote."

See also: -McSally Claims Victory Over Barber in CD-2, but a Recount Is Coming -Why 133 Votes Weren't Counted in the Race Between Barber and McSally

According to the Barber campaign's lawsuit, these votes weren't counted for a variety of reasons, like the voter casting a provisional ballot at the wrong polling location, or a signature on the ballot not matching the voter's registration form.

A few of these moves simply disqualify the voter's ballot, like casting a ballot at the wrong location. In other cases, like when a voter forgets to sign their ballot, county officials attempted to contact at least some of those voters to get them to sign the ballot so their vote is counted.

Some circumstances were a bit more tricky -- the Barber campaign alleges that in some cases, voters who were turning in provisional ballots at the wrong polling place were told by election workers that it's okay to do so, or weren't directed to the correct polling place, which poll workers are supposed to do.

After hearing arguments from both sides, Judge Jorgenson cited the case law that, "In general, garden variety election irregularities do not violate the Due Process Clause, even if they control the outcome of the vote or election."

McSally has a 161-vote lead over Barber, which is within the margin to automatically trigger the recount process. Had those 133 votes been counted, Barber could have cut that lead to as little as 28 votes heading into the recount.

Now that the election results have been certified, the recount process will begin as soon as it's green-lighted by a judge.

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Matthew Hendley
Contact: Matthew Hendley