In a race that remained too close to call a week after the Nov. 6 election, Congressman Ron Barber was leading GOP challenger Martha McSally by just hundreds of votes as the Weekly went to press.
With tens of thousands of Pima County provisional ballots left to be counted, Barber led McSally by 829 votes early in the evening of Tuesday, Nov. 13. Barber had 136,785 votes, or 50.06 percent; McSally had 135,956 votes, or 49.76 percent.
The close race spilled over into a courtroom on Tuesday morning as GOP attorneys went to a Cochise County judge to try to halt the counting of provisional ballots from some Latino-heavy precincts.
Barber's campaign manager, Jessica Floyd, said it was an effort by Team McSally to disenfranchise Cochise County voters.
"We respect the ballot-counting process currently taking place and want to see it move forward," Floyd said in a statement. "The request for a temporary restraining order filed today is an active attempt by Martha McSally's attorneys to disenfranchise voters in Cochise County. Throwing away the votes of Southern Arizonans is wrong and unacceptable."
National Republican Congressional Committee spokesman Daniel Scarpinato emailed this statement: "We believe that every voter has the right to an election that is free of fraud and ballot-tampering. Southern Arizonans expect that their will is not diluted by fraudulent ballots. We want to make sure the law is followed, and the rights of legal voters are preserved."
In a brief filed with the court, attorneys Eric H. Spencer and Michael Liburdi of the Snell and Wilmer law firm claim that approximately 130 provisional ballots should not be counted, because they "have been spoiled because they were not sealed, as required, when they were transported from the Castro Park, Ramsey and Hopi Precinct polling locations to the Cochise County Elections Department and Recorder's Office."
The lawyers asked for a temporary restraining order to keep the Cochise County Division of Elections from counting the ballots.
But attorneys Paul F. Eckstein, Dan Barr and David Gaona of the Perkins Coie law firm, which is representing Barber, said that Judge Wallace R. Hoggatt should reject the request for a temporary restraining order, because Spencer and Liburdi "simply cannot point to anything ... which would require that provisional ballots be sealed when presented to election officials for verification."
Additionally, Barber's attorneys argue that "above all, the public interest does not favor casting aside 135 valid provisional ballots as a result of an invented technicality that has no basis in Arizona law."
However, on Tuesday afternoon, both parties reached a mutual agreement to allow the count to move forward.
The court action came after days of ballot-counting that saw the CD 2 race swing back and forth between Barber and McSally as votes were tallied in Pima and Cochise counties.
On Tuesday, as many as 6,700 early votes and about 2,000 provisional votes remained to be counted in Cochise County, according to the Arizona Secretary of State's Office, although other sources told the Weekly those numbers were much lower. Pima County had an estimated 4,000 early ballots and 27,000 provisional ballots left to count.
Barber started out with a lead as the first ballots were counted on Election Day, but he fell behind as the night wore on. By the time he addressed the crowd at the Marriott University Park toward the end of the Democrats' celebrations, he was trailing by more than 1,000 votes.
"It feels like 2010 all over again," Barber wryly noted.
That year, Congresswoman Gabrielle Giffords was narrowly ahead of Republican challenger Jesse Kelly. As more early ballots were counted in the days after the election, however, Giffords extended in her lead.
This year, the lead was traded back and forth between McSally and Barber, a former aide to Giffords who won the seat in a June special election after Giffords resigned in January to focus on her recovery.
As Pima County tabulated ballots, Barber would take the lead. As Cochise County tabulated its ballots, McSally would take the lead. On Sunday, Nov. 11, Barber moved into the lead and hadn't surrendered it again by press time.
McSally held a press conference on the morning after the election to say that she was going to let the process unfold.
"We feel good; we're optimistic; we're a little sleep-deprived, but we're going to let the process work itself out," said McSally, a former Air Force pilot who returned to Southern Arizona to run for Congress after Giffords' resignation.
Barber released a statement on Wednesday, Nov. 7, saying that "representing Southern Arizona has been the honor of my life."
"While we don't yet know the outcome of this election, I want to say how grateful I am to all those who have stood alongside me—and stood up for what's important to Southern Arizona," Barber said. "We'll continue to watch the results over the next few days, and whatever happens, we will trust the people of Southern Arizona—as I always have and always will."
The CD 2 race ended up being the closest congressional race in the state, even after most political observers, including national congressional forecasters such as Charlie Cook and Stuart Rothenberg, gave the edge in the race to Barber.
The National Republican Congressional Committee spent considerably less money supporting McSally than it did in other competitive congressional races in Arizona. And the Democratic Congressional Campaign Committee pulled back on some of its spending, because polling showed Barber with what seemed like a safe margin.
But in the final weeks leading up to the election, the race began to tighten, according to partisans on both sides.
Throughout the vote tally, Barber has had the edge in Pima County; as of our press deadline, he led here by 4 percentage points. That was due to his strength among early voters, which he won by more than 12,000 votes. On the day of the election, however, McSally actually outpolled Barber by more than 3,000 votes (not counting provisional ballots).
McSally has dominated in Cochise County, which she won by a 60-40 margin. But Cochise County voters only make up about 20 percent of the district.
The mystery yet to be unveiled is what kinds of voters cast provisional ballots in Pima County, since no one has a list of who they are. If they behave like early voters, it will be good for Barber; if they behave like day-of-election voters, it will be good for McSally.
On the morning of Tuesday, Nov. 13, NRCC spokesman Daniel Scarpinato said that McSally "remains in a solid position to carry the district given the votes that remain, and our projections indicate she will win. It's vital that all legally cast ballots are counted, and that the process in place is completed."
Meanwhile, Barber campaign manager Jessica Floyd said that she was optimistic that "there's still more for us than for her in what's left to count."
Mariana Dale contributed to this story.
