Wednesday, November 26, 2014

Team Barber Gets Its Day in Court: Will Disqualified Ballots Get Back Into the Mix?

Posted By on Wed, Nov 26, 2014 at 7:00 AM

Kevin Fink wants his vote counted.

He dropped off his early ballot at a polling station on Election Day, just like plenty of other folks. But his ballot was disqualified because his modern-day signature didn’t match the one he put on a voter-registration card he filled out some dozen years ago.

He remembers he got word from the Pima County Recorder’s Office: He had a day to get back to them or his vote wouldn’t be counted. He called a hotline number and left a message, but no one called him back. And then the deadline passed and his vote was tossed out.

Fink is a partner and chef at the award-winning Zona 78, and while he’d love to say that the restaurant gets it right 100 percent of the time, he knows that mistakes get made. But given that the state is going to recount the ballots early next month, he wants to see his vote included in the mix.

“I realize there are going to be problems, but when it’s so close like this, I thought it was really important to be able to sway the political situation here in Arizona,” Fink said. “The number one thing I hear from my generation is that it doesn’t really matter if you vote.”

Fink is among at least 133 people whose votes indeed did not count for various technical reasons—and whose ballots Congressman Ron Barber’s legal team is now trying to get back into the mix ahead of a December recount of the Congressional District 2 race. It’s a big deal: Barber, a Democrat who won Gabby Gifford’s former congressional seat after she stepped down in 2012, trails his Republican challenger, Martha McSally, by just 161 votes.

As Team Barber attorney Kevin J. Hamilton put it at a press conference earlier this week: “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. … 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 lawyers are due in federal court today, seeking an injunction to prevent Secretary of State Ken Bennett from certifying the election next Monday, Dec. 1. Over the last week, Hamilton and Reese have asked the boards of supervisors in Pima and Cochise counties as well as Arizona 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 and Bennett rejected the idea. Bennett is scheduled to do next Monday, Dec. 1.

Team Barber’s legal team case rests on whether the deadlines and other rules to remedy the disqualified ballots were arbitrary. They say these ballots were rejected even though the voters followed the rules, so the ballots should be counted ahead of any recount. As the lawyers argue in their petition, “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.”

Team McSally has asked that the entire case be dismissed. (If you'd like to see all the legal mumbo-jumbo, Arizona's Politics been following the play-by-play and posting the arguments.)

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 votes involved to sway a race one way or another. But this is a congressional race with a 161-vote margin, so 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.”

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