Judge denies McSally move, says to continue counting Pima ballots
GOP request for restraining order on provisional ballots refused by court
See this Wednesday night update: McSally pulls out 161-vote win in CD2, recount coming
See this update from Monday night: Barber picks up more votes, McSally up by 179
A request by GOP candidate Martha McSally for a restraining order to halt the count of provisional ballots in Pima County was denied by a judge Monday. McSally, up just 341 votes, has had her lead slowly eroded as additional ballots have been tallied in her challenge to U.S. Rep. Ron Barber.
Pima County Superior Court Judge James Marner refused McSally's request — filed by her lawyer on behalf of Jennifer Rawson, a failed Republican candidate for City Council in 2011 — for a restraining order to halt the count of provisional ballots, saying there was no irreparable harm in the count continuing.
McSally asked the judge to declare the ballots void, and bar officials from counting them.
Barber's team said a procedure that election workers sign the envelope containing a provisional ballot is a "technicality" that shouldn't void a vote if the signature is missing.
The ruling didn't resolve the issue of whether the contested ballots should be included in the final tally for the race. Barber's legal team and elections officials argued against segregating ballots that McSally's camp has challenged. While the GOP challenger may push ahead with a suit on the issue, another hearing in the case is not yet scheduled.
In the latest results, Martha McSally led Barber by just 341 votes Sunday, as Pima County released new numbers just after 4 p.m. Barber picked up 168 votes in the spread as new tallies were reported.
McSally's lawyers said Sunday they were prepared to go to court to halt the processing of provisional ballots, saying they are challenging the validity of provisional ballot forms that were not signed by elections officials.
A lawyer for the McSally campaign and the Republican Party asked the Pima County Recorder's Office on Sunday to stop processing provisional ballots or sending them to be counted by the Elections Department, "pending a review of the provisional ballot forms for missing election official signatures."
County officials refused to halt processing ballots on Sunday.
"We are proceeding as planned," County Recorder F. Ann Rodriguez emailed Sunday in response to the challenge.
Rodriguez's office completed verifying all of Pima's provisional ballots Sunday, finding that 9,335 were valid.
"There were 767 provisional ballots found to be invalid for various reasons, including trying to vote at the wrong polling place," said county spokesman Mark Evans in an email Sunday. More than 7,300 verified provisionals had been transferred to the Elections Department for counting by Sunday, with the rest slated to be moved Monday morning, he said.
McSally's lawyers didn't state how many ballots, if any, they believe may be at issue, and did not respond to questions on the challenge from TucsonSentinel.com. Officials at the Elections Department didn't respond to inquiries.
In their court filing Monday, Barber's legal team indicated that "several hundred ballots may fall into this category."
Barber's lawyers said that if there are provisional ballots in envelopes that were not signed by poll workers, that should not invalidate the vote that was cast. Calling the process a "technicality" that has "nothing to do with the validity of a provisional ballot," they wrote that "the signing of a provisional ballot envelope by a poll worker is not a mandatory requirement" under Arizona law, and that the absence of a poll worker's signature "would not work to invalidate a voter's otherwise-clear expression of her intent."
While McSally's team based their challenge on a claimed violation of procedures outlined in the elections manual from the Arizona Secretary of State's Office, Barber's attorney's dismissed those allegations.
Not included in their filing was a directive in the manual (page 182) that states that "a provisional ballot shall not be rejected solely for lack of signature on the affidavit by polling place election officials." Deputy County Recorder Chris Roads testified about that portion of the manual during Monday's hearing.
Secretary of State Ken Bennett, a Republican, testified that the lack of a poll worker's signature should not be enough to disqualify a ballot, and that there are other procedures to ensure the validity of a ballot.
Barber's campaign blasted the move to challenge the ballots, and slow or halt the vote count, with spokeswoman Ashley Nash-Hahn saying that it was a "clear example of McSally trying to deny Southern Arizonans our right to vote."
"Today was a win for democracy and a win for the people of Southern Arizona, who will make their voice heard at the ballot box," she said of Monday's ruling.
"We've seen (McSally's) tricks before, when she tried to throw out votes in Cochise County," Nash-Hahn wrote Sunday.
In an election night speech, Barber also referred to McSally's 2012 move to have ballots removed from the count in Cochise County, saying Democrats wouldn't let that happen in this election.
"We're disappointed that a motion to shed more light on the rules being decided inside the Recorder's Office was denied," said McSally spokesman Patrick Ptak. ""Southern Arizonans deserve to know that all procedures are being followed to ensure ballots are valid and that rules aren't simply being decided on a whim."
McSally is targeting ballots from six Pima County precincts, five of them within CD 2, Democratic Party sources with knowledge of the vote count said.
Five of those precincts voted overwhelmingly for President Barack Obama over Mitt Romney in 2012 (precincts 53, 57, 58, 100, and 113) while the precinct outside the district swung for the Republicans.
While Barber's lawyers told the judge that McSally's opportunity to challenge the election under Arizona law will come after a final vote count is announced, the attorneys for the challenger maintained that "there is no mechanism to trace or claw back those particular votes once the disputed ballots are fed through the elections tabulating equipment in the next few hours."
Marner rejected that argument, holding that there would be no harm in continuing the count, and that McSally was unlikely to prevail on the merits of the case, should it proceed.
Count to continue
Officials said Pima will resume count the 9,335 remaining provisional ballots at 3 p.m. Monday, and that about 2,600 should be tallied during the remainder of the day.
Elections Director Brad Nelson said the count will continue through Veterans Day on Tuesday, Evans said.
"Page 152 of the Secretary of State’s Election Procedures Manual states that, prior to voting a provisional ballot: 'An election official or voter completes a provisional ballot form. The voter and the election official sign the provisional ballot form,'" attorney Eric Spencer of Snell & Wilmer wrote Sunday morning in an email to elections officials.
"In response to your challenge, the Pima County Recorder’s Office will not stop processing the provisional ballots. Whether or not the poll worker signed the provisional is clearly identifiable from a simple examination of the provisional ballot form whether or not the provisional is processed by the Recorder’s Office. Therefore our processing has no bearing as to your challenge. In other words, the fact that we processed the provisional form will not impact your ability to proceed with your challenge. The Recorder’s Office is under a statutory deadline to complete processing the provisional ballots and we will continue to proceed toward meeting that deadline," replied Deputy County Recorder Chris Roads.
In an email exchange, McSally's attorney's appeared to back off their request that the county cease processing all ballots pending a review for such signatures by elections officials, but continued to maintain that the Recorder's Office should review each provisional ballot before sending it to the Elections Office.
Roads said stopping the process because of a missing signature on the form accompanying a ballot would halt the review of votes.
"Nothing the Recorder’s Office does to the provisional ballots in any way, shape, or form impacts the identification of provisional ballots that may or may not be missing poll worker signatures," he wrote in another email to the Republicans' attorney.
"Even when we have finished processing the provisional ballots, the forms readily identify whether they were signed by a poll worker or not. Therefore there is no legal reason whatsoever for the Recorder’s Office to stop processing any forms. In our procedures, all forms from a single voting area must be handed off together. Therefore stopping processing one that may not contain a poll worker signature results in holding up all forms from that voting area," Roads wrote.
Roads told Spencer to deal with the Elections Department rather than the Recorder's Office.
"You included both and I responded for our office. I have not seen a response from the Elections Department and I do not know whether or not Brad Nelson is even sitting at his computer to monitor the emails," he said. "I will not debate you any further on this issue."
Rodriguez said Sunday that 9,254 provisional ballots had been checked once, with 5,312 having been rechecked and transferred to the Elections Department for counting.
There were 693 provisionals that were classified as "non-verified" but needing a second review, she said.
An account of the count
The Republican stronghold of Cochise County finished reporting nearly all of its ballots Friday — there are reportedly just 2 conditional provisional ballots left to verify there — while the the more populated Pima County, which leans more Democratic, has forged on with a tally of about 13,000 outanding ballots over the weekend.
Sunday, about 2,200 ballots were added to the totals in CD 2, with 3,355 ballots counted in the county. Earlier, officials had said it was unlikely that Pima would update the count until Monday.
In 2012, Barber won by just 2,454 votes when all the votes were counted — which took days. His margin was less than one percent of the votes cast in the race.
"As expected, the vote leads continue to go up and down. Thousands of ballots remain to be counted in Pima County, where Ron is leading, and we will likely see the trend go in the direction of 2012," said Barber spokeswoman Ashley Nash-Hahn in an email Friday night.
The McSally camp didn't immediately issue a statement on the latest returns.
While McSally has led Barber since early Tuesday evening, her lead has shifted as new votes totals have been reported.
In results released Wednesday morning, McSally led Barber 78,785 to 78,749. In the afternoon, as Cochise County reported results, she increased her lead to 90,345-88,267.
As Pima County tallied more votes Wednesday, McSally's overall lead fell to a 94,103-92,810 (1,293 votes) spread.
Thursday, as Pima County tabulated another 16,000 votes, Barber's deficit dropped 960 votes, to just a 363-vote spread.
Midday Friday, new returns from Cochise bumped McSally back to a 772-vote lead, but Pima County votes released at 5:48 p.m. gave Barber a few more votes, moving the difference between the candidates to 317.
An update about an hour later from Cochise increased the totals for both, but gave McSally an edge, with 509 separating the two candidates.
Sunday, the latest results had McSally still leading, ahead 341, but with Barber picking up votes as more ballots were counted. The current totals in CD 2 are 106,705 for the Republican challenger, and 106,364 for the Democratic incumbent.
While it's not known how many of the outstanding ballots are from CD 2, about 10,500 of the votes added to the count on Thursday were from the district, as were 10,259 of the 16,118 processed Friday, Evans said.
An automatic recount would occur if the difference between the candidates is 200 votes or less, or less than 0.1 percent of all the ballots cast in the race.
Read more about the long count in Pima County
The last few elections to determine Southeastern Arizona's congressional representative have taken days to tally, and this one looks to be no different.
In Pima County, a complete vote count could take until next Thursday, Pima County Administrator Chuck Huckelberry said. Broken election machines and a high number of difficult-to-read ballots have slowed the process, he said.
With more than 40,000 ballots left to count on Thursday morning, Huckelberry said that a "higher than average number of ballots that cannot be read by the existing scanners" and two broken ballot scanners were contributing to the long count.
Statewide, there were still nearly 134,000 ballots awaiting tabulation across the state, according to data released by the Secretary of State's Office on Friday
As of 5 p.m., those ballots included some 88,000 in Maricopa County, nearly 10,000 in Pinal County, and Pima County's remaining ballots. Most other counties had 1,000-2,000 ballots left to be tallied.
In Yuma County, the count will be halted over the weekend, and resume Monday, according to the Secretary of State's Office.
In one of the few hotly contested local legislative races, incumbent Republican Ethan Orr was narrowly losing his state House seat in LD 9. After Friday's update, Democratic incumbent Victoria Steele had 32,182, Orr had 31,935 and Democratic challenger Randy Friese had 32,470 votes in the vote-for-two contest.
Although the Dems focused on beating Orr, whom they believed they could oust from his seat in a Democratic-leaning district, other Ds were running worse than expected in state House races in solid blue districts.
In LD 2, incumbent Demion Clinco — appointed earlier this year — trailed seat-mate Rosanna Gabaldon and GOP challenger Chris Ackerley by about 2,000 votes. In LD 4, Charlene Fernandez was up 65 votes over Republican Richard Hopkins, as updates from Yuma County shifted the race. Earlier, she had trailed, while fellow Democrat Lisa Otondo led the pack.
Read more about Cochise County's ballot troubles
Technical troubles in Cochise County — where McSally made a strong 59-41 percent showing in 2012 — again delayed a complete tally there. In a repeat of problems demonstrated in the August primary, county officials said that they delivered their early ballots to Graham County to be counted.
"Due to discrepancies between the early ballot counting machine numbers and the handwritten tally, the County's early ballots have been delivered to Graham County for tabulation," said a notice on the Cochise website Wednesday.
While Cochise officials said on their website that the early ballot count should be completed Wednesday, there were still a couple thousand left to tally on Thursday evening.
Jim Vlahovich, the interim director of the county's election department, said 2,121 early ballots and 1,161 provisionals remained to be counted.
Incomplete returns reported from Cochise showed McSally up 8,318 to 3,911 over Barber Wednesday morning, with tally that afternoon at 19,864-13,415 in favor of the Republican.
Friday morning, the count stood at 21,117 for McSally to 14,259 for Barber. Friday night, the 6:41 p.m. report showed McSally up 27,731-14,681 in the heavily GOP county.
Vlahovich said Thursday that he didn't yet have an explanation for the problems with the Cochise count.
Friday, Cochise had tallied nearly all of its votes, with just a pair of conditional provisional ballots left to verify.
In Pima County, which is partly covered by Barber's CD 2, there were about 13,000 ballots remaining to review Friday night. In a process that can take up to 10 days, provisional ballots and early ballots handed in on Election Day must be verified before they can be counted. There were about 3,726 ballots remaining to be counted at the Elections Department, and roughly 9,400 provisional ballots still needing to be verified, Evans said.
The 16,000 votes counted Friday was higher than the figure of 14,000 ballots remaining to count "because the estimate on the number of duplicated ballots to count was too low last night," Evans said.
Not all provisional ballots will be valid. The reason for the delayed count is the process of reviewing early ballots returned on Election Day, to ensure that duplicate ballots were not cast by individual voters, and the verification of provisional ballots.
Voters can drop mail-in ballots at polling places on Election Day, so officials review the voter rolls to ensure that voters do not vote more multiple times. Otherwise, a voter could cast a mail-in ballot and also vote in person at the polls.
Provisional ballots are cast by voters who do not have the proper ID, who are not listed on the rolls of the polling place they are casting a ballot at, and for other reasons. For voters who lacked proper ID, they have until 5 p.m. next Wednesday to provide proof of their identity at the County Recorder's Office, in order for their vote to be counted.
There are about 300 such "conditional provisional" ballots that may be added to the tally if those who cast them provide proof of their voter registration before the deadline.
Barber campaign advisor Rodd McLeod said Wednesday that the congressman pushed Democrats to vote early in Cochise County.
"We don't think we're going to lose (the early vote) by anywhere near the numbers we lost the Election-Day ballot," he said. "All the tens of thousands of (still uncounted) Pima votes will even it out and we'll lead in the end," he said.
Team Barber continued to put out the message that they'll win, with Nash-Hahn saying Wednesday evening that, "As we expected, vote leads have gone up and gone down. Protecting the integrity of the vote is our priority. There are still tens of thousands of votes to be counted in Pima County, where Ron currently has a lead."
McSally also sounded a note of confidence, posting on her Facebook page Wednesday: "Right now, there are still many ballots to be counted and the race is too close to be called. It's critical that every last vote is counted and that all Arizonans have their voices heard."
Speaking to supporters just before 10 p.m. Tuesday night, Barber said he'd be re-elected.
Saying his campaign decided to "take the high road, rather than the low road," Barber noted his lead in the early vote count and said, "We are going to win this seat."
"We're making sure that dark money doesn't have a victory in Arizona," Barber said. "This is the third-most expensive House race in the country, because outside forces wanted to win this seat."
The vote count tightened after Barber spoke, with his lead dropping a point, to about 1,400 votes at that point.
"Man, you guys are the people who like to stay up late," said McSally to a thinning crowd of supporters around 10:30 p.m.
"We don't expect a decision tonight, so don't feel like you have to stay around late," she said.
"We have no regrets, we didn't leave anything on the table. We worked to get every vote. And we want to make sure that every last vote is counted," she said. "Looks like it's going to be another long night."
After McSally left the podium, "We are the Champions" by Queen played on the sound system.