A federal judge last week
rejected an effort by Congressman Ron Barber's campaign to include an additional 133 votes that were disqualified for administrative reasons in the 2014 election.
The decision cleared the way for Arizona Secretary of State Ken Bennett to certify the results of the Nov. 4 election, in which Republican challenger Martha McSally outpolled Barber by 161 votes. Because the race is so close, a state-mandated recount is scheduled to follow the certification.
Bennett certified the results on Monday, Dec. 2, and the recount was scheduled to begin this week.
In her Thanksgiving ruling, U.S. District Court Judge Cindy Jorgenson said that attorneys for Barber, as well as three of the voters who saw their votes disqualified, failed to show that the votes were tossed out on a systemic basis, rather than being the kind of "garden variety" errors that occur in an election.
"Thus, while the Court is not unsympathetic to the plight of individual voters whose ballots may have been improperly rejected, the Court finds that plaintiffs have not met their burden to show that persuasive error that undermines the integrity of the election," Jorgenson wrote.
Barber Campaign Manager Kyle Quinn-Quesada that he was "disappointed" in Jorgenson's ruling but added that Barber's team remained "committed to ensuring that Southern Arizonans are able to trust the integrity of this election, and we thank the voters who not only took the time to vote in this election, but who came forward to ask that their voices be heard. We look forward to an open and transparent recount that will allow all Arizonans to have confidence in the final outcome of the election."
Barber attorney Kevin J. Hamilton said last week that the campaign was going to court to protect the rights of voters whose ballots were rejected.
"The voters cast their ballots in accordance with federal and state law, in some cases at the specific direction of poll workers, but their ballots weren't counted," Hamilton said. "If you do everything right, if you're entitled to vote in this election, and you cast your ballot, that ballot ought to be counted."
Hamilton knows his way around recounts. He and attorney Ezra Reese, who is also on Barber's legal team, have between them worked on several recounts, including in a 2008 Minnesota contest in which Al Franken came back from a deficit of a few hundred votes to win his U.S. Senate seat and a 2004 recount in the Washington governor's race that put Democrat Christine Gregoire on top. Since the election, they've worked with Team Barber to send operatives door-to-door talking to voters whose ballots had been disqualified and collecting declarations.
The loss in court last week followed unsuccessful efforts to ask the boards of supervisors in Pima and Cochise counties and Secretary of State Ken Bennett to delay a certification of the election until more investigation—and perhaps legal action—could put some of the disqualified ballots back into the mix, but the supervisors in both counties rejected the idea.
Team Barber's legal team's case rested on whether the deadlines and other rules to remedy the disqualified ballots were arbitrary, so the ballots should be counted ahead of any recount as, the "there are few harms greater and more impossible to repair than being stripped of the constitutional right to vote. ... And it is beyond dispute that there is a compelling public interest in protecting the voting rights of Arizona citizens and ensuring the integrity of elections."
Among the plaintiffs: 81-year-old Lea Goodwine-Cesarec, who says with considerable pride that she hasn't missed voting in a congressional election since she first became eligible to vote some six decades ago.
Goodwine-Cesarec moved just before the election and believed she had updated her address with a phone call to the County Recorder's Office. But when she ended up in the wrong precinct on Election Day, she says she was told to vote a provisional ballot instead of being directed to the proper polling place.
These sorts of mix-ups are not uncommon on Election Day; there usually aren't enough to sway a race one way or another. But with a recount looming and a 161-vote margin, there's a scramble on to make every vote count.
Goodwine-Cesarec sure thinks her ballot ought to be counted. She still can't believe her vote was "thrown in the trash."
"I really think that it was just plain wrong," Goodwine-Cesarec says. "It's pretty irritating to think that my vote was not counted because I wanted to vote. I got out and voted. I submitted the vote and it did not count. And that's just wrong."