A Pima County Superior Court judge has denied an effort by Republican Martha McSally’s congressional campaign to stop counting a group of ballots in Democratic precincts in her hotly contested race against Democratic incumbent Ron Barber.

Superior Court Judge James Marner said that he would not issue a temporary restraining order or preliminary injunction to stop the count of provisional ballots that were missing a signature from a poll worker.

The race remains extremely tight, with McSally leading Barber by 341 votes.

County officials say there are an estimated 9,300 provisional ballot awaiting tabulation in Pima County, where Barber ran ahead of McSally. An unknown number are in Congressional District 2.

Pima County Election Director Brad Nelson said ballot counting would resume this afternoon but he did not expect the complete the count of the provisional ballots.

Lawyers for both campaigns, as well as a deputy county attorney, were in court this morning to debate whether the questioned ballots should be set aside until a substantive argument could be made as to whether they are valid.

Attorney Dan Barr, representing the Barber campaign, said that the voters’ ballots shouldn’t be tossed aside based on a technical error.

Barr said the question was whether the court should “toss aside a voter’s ballot when they didn’t do anything wrong. They did everything they were supposed to do … and because of some technical error, we’re not going to count their vote.”

Deputy County Attorney Daniel Jurkowitz said that if these sorts of challenges regarding minor technical errors were regularly entertained, then elections would never be resolved.

“There’s no such thing as a perfect election,” Jurkowitz said.

Attorney Brett W. Johnson, representing the McSally campaign, said that an elections manual distributed by the Arizona Secretary of State’s office did include a provision that stated that administrative errors are grounds for disqualifying ballots.

But other sections of the manual conflicted with that rule and Secretary of State Ken Bennett testified that that were other safeguards to ensure election integrity beyond the signatures on the forms.

Marner said the election manual was “a bit of a head scratcher” but expressed his judgment that the McSally legal team was not likely to prevail on the merits of its case, so he would not grant their request to stop the counting of the questioned ballots.

The underlying question as to the validity of the ballots remains unresolved.

This article appears in Nov 6-12, 2014.

Getting hassled by The Man Mild-mannered reporter

16 replies on “Judge Denies Team McSally’s Motion, Allows Vote Count To Continue in Hotly Contested Barber-McSally Race”

  1. One suit down and at least one more to go, as well as at least one recount. Almost a carbon copy of the last race between these two.

  2. With his ruling has the judge eliminated one our our election law processes?

    Do any ballots need to be signed now that these don’t?

    Is anybody going to be terminated?

    Elections in Nicaragua are by far, smoother.

    Slouching towards third world status…

  4. Rat T,

    I doubt anybody, including McSally’s lawyers, really expected a TRO to be issued. After seeing the challenge yesterday I downloaded the SoS Election Procedure Manual. While it indeed says that pollworkers need to sign the ballots, it also clearly states (p. 182):

    “A provisional ballot shall not be rejected solely for lack of signature on the affidavit by
    polling place election officials.”

    But I don’t blame McSally for trying.

    What I find much more troubling is the number of ballots that keep “turning up.” Mailed in ballots needed to be received by Tuesday at 7PM. Obviously I can understand some delay in processing late arriving mailed ballots. I’d really think this could have been completed by Wednesday and Thursday, Friday being a sign (to me) of some rather gross incompetence or lax procedures…but continuing to *find* and certify as valid, mailed in ballots on Saturday, Sunday and Modday? Adsurd.

    I, for one, would love to hear an explanation as to where those ballots were sitting for almost a week.

    Furthermore I have to assume that some mailed ballots were, in fact, received after the deadline. I’d love to hear some details regarding how many late arriving ballots there were, what happened to them and what the Recorder’s procedure is for dealing with ballots arriving after the deadline. I wouldn’t put it past some staffworker to decide that a late arriving ballot “shows the will of the people” despite the *technicality* that it arrived post-deadline.

    I’ve got another problem with the Recorder’s lack of transparency. As of Friday the Recorder reported having 9,856 Provisional ballots on hand (these were ALL ballots turned in at polling places on Tuesday). Yet as of this morning the recorder has declared 9930 provisional ballots valid and turned them over to counting while invalidating 767 of them. Where did these extra 1000 provisional ballots come from? Where were they on Wednesday, Thursday and Friday?

    To be clear, I’m not making any allegations of fraud…in all likelihood its just incompetence on the part of the Recorder. But the lack of transparency and accountability is troubling and certainly lays the groundwork for mistrust and plays right into the twin memes of democrats stuffing ballot boxes and republicans suppressing voters. 🙂

    Some explanation is, I believe, in order.

  5. The law does not include the requirement that Ken Bennett put his election procedures manual. The law prevails over an administrative rule written by a bureaucrat. Look at A.R. S. Section 16-548. There is no such requirement. So, the County is following the law.

  6. Moderate McSally Supporter – The Recorder validated 9,355 provisional ballots out of 10,102 checked. The number you quoted above – 9,930 – is the provisional ballots turned over to Elections, which includes ballots that were found to be invalid. Elections only counts the ballots determined to be valid. None of this happens behind closed doors or in smoky rooms. All ballot processing, either by the Recorder or at Elections is done under the direct observation of representatives of both political parties.

  7. Mark.B.Evans

    Thanks so much for the clarification! I was assuming that the 9930 number was only valid ballots.

    Hope my post didn’t fan the conspiracy theorist flames TOO hard. 😉

  8. Thank you Moderate. The two issues should NOT be mutually exclusive. They included the need for a poll worker to sign off for a reason.

    Talk about building trust with transparency…the media reported Saturday that the counting would resume on Monday…and now Monday we find out they counted on Sunday.

    I am so tired of screwed up election returns in this town. We are the laughingstock of the nation.

    Just another reason not to move a company here that could provide jobs.

    Do we really get the government we deserve? I hope not….

  10. While I still hope Barber wins, I have to say, Moderate McSally Supporter is the kind of commenter that gives me hope for the internets.
    If McSally wins, I hope she is as well-reasoned and polite as MMS.

  11. In a 2001 election between incumbant mayor of Apache Junction and Elliott Fisher ballots were allowed to be tallied 9 days after election after the superior court stated they were not allowing a recount the were allowing a “retabulation “
    ” a recount is illegal” unless the tally is within one tenth of one percent of the total votes cast.
    They stated a upset had no historical context in Apache Junction elections! Fisher won then lost.

  12. We electors deserve election results that are verified. We shouldn’t have to wonder like with Congressional Arizona District 2 race that looks real weird. When you have an election where Martha McSally ( R ) won the vote at the precinct election day by 56% to 43% and won Cochise County by 59.5% to 40.5%. However, Ron Barber (D), is wining the Vote by Mail (VBM) at a rate of 54% to 45 in Pima County. VBM in Pima County in this election is 78% of the total vote count in Pima County. Martha McSally (R ) , is leading with only 341 votes out of 214,043 counted. With about 9,000 provisional ballots to go the momentum has shifted to Ron Barber. McSally’s team has filed a legal action about the provisional ballots that they will lose for lawful reasons. Instead, her team should be going after the actual VBM count and the weird shift between votes cast at the precincts, versus the VBM which Pima Elections started counting a week before the election, and has a history of peeking at the results before election eve at 8PM.

    With these discrepancies described above someone should be asking a judge to order a hand count audit of 2 randomly picked precincts to verify the count on this race and others. On 08/05/14, at the Pima County BOS I said: “About 80% of the votes are expected to be Vote by Mail in the Aug 26th Primary, and November 4th General Election. VBM Ballots are not sorted except inside the central ‘hackable’ tabulator that could easily be programmed to only hack ballot batches over 300. But by selecting 2 precincts late Election Night after all results are published by precincts and made public, makes it almost impossible for a hacker to hack the VBM. However, Chuck Huckelberry and his bud Benny White are going all out, to stop again any efforts to make elections “Transparent and Verifiable”. Why would Huckelberry stop “Verifiable Elections”, you may ask? “Is he protecting his right to cheat in the future?”

    Also on 08/05/14 Mickey Duniho said: (except) “Mr. Huckelberry’s memo claims that you need to reject our recommendation in order to maintain voter confidence in the election systems”. This reminds me of the slogan in George Orwell’s 1984 novel that reads, “War is Peace; Freedom is Slavery; Ignorance is Strength.” Your EIC made recommendations to you to try to move Pima County in the direction of restoring voter confidence, which has been lost through Mr. Huckelberry’s closed ballot counting system, with no statistically useful hand count audit of early ballots. Mr. Huckelberry has been fighting election reform for the entire ten years that I have been involved in the election reform movement. His Election Director, Brad Nelson, lobbied in 2006 to water down the hand-count audit law, so that only one percent of early ballots are required to be counted, and there is no requirement to compare early ballot hand counts with officially reported election results, so there is no requirement to audit County elections at all. Pima County has fought election reform in the courts, using millions of taxpayer dollars to prevent expansion of election transparency.

    Linked to testimony by Mickey Duniho & John R Brakey, with the, PCBOS, verified that VBM has not been HACKED 8.5.14: http://youtu.be/4y2wBXZ9R8c

    Here is the bad part. The only way a recount can happen in Arizona (worst in USA), is if the results are within 1/10 of 1%. That means the difference in the results must be 226 votes or less to get a recount., as per ARS 16-661. Automatic recount; requirements; exemption. Now guess what,? It’s done by machine. Recounts in Florida, is set at ¼ of 1 percent, and ballots are a “public record”, unlike Arizona, where they are not!

    We at AUDIT-AZ collectively work to protect the “purity of elections”; “run by the people”, to ensure the fundamental right of every American citizen to vote, and to have each vote counted as intended in a secure, transparent, impartial, and independently audited election process. These are rights under our State Constitution, enforced by State law, and in the SoS Election Procedures Manual.

    Sadly, elections without public accountability are nothing more than vote-counting in the dark controlled by a county government in the act of choosing itself and its cronies while picking our pockets. Respectfully, John R Brakey

  13. I cast a provisional ballot because I chose not to vote by mail and instead voted in person. I followed procedures as directed by the poll workers. I don’t know if an election worker signed my ballot envelope, but even if not, I certainly hope my vote is counted.

  14. Numbers are in McSally wins!
    Today Pima counted 4272 Provisional votes
    2676 were CD2 (62.64%)
    They split:
    Barber 1355 (50.64%)
    McSally 1309 (48.92%)

    Barber needed more like a 54/45 split to take the lead.

    Now there might still be some votes sent to duplication and some outstanding conditional provisionals, but its just a couple of hundred…if that…and Barber would have to take like 70%.

    So you heard it here first. McSally wins pending recount!

  15. I guess Martha and her handlers didn’t notice that SCROTUS said that the unconstitutional process that gave gwbush the pResidency in “Bush v Gore” was a one-time, only for gwbush (poppy’s son) thing, eh?

  16. Al Gore helped throw out the military votes to try to steal that election.

    Read your white history books.

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