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Court OKs delay in McSally/Barber ballot dispute; Barber up 654

Arizona's CD2 race tied up; handful of votes could pick U.S. Rep.

A judge accepted an agreement to keep a ballot case open without a decision after backers of Republican challenger Martha McSally asked Tuesday for a halt in the count of provisional ballots in several precincts in Arizona's CD2.

The campaign of U.S. Rep. Ron Barber blasted the request, calling it "voter disenfranchisement" and said that one of the precincts has a Latino voter majority.

In a filing in Cochise County Superior Court, Republicans alleged improprieties in the handling of 130 provisional ballots from three precincts. Attorneys for Barber called the claims an "invented technicality" in a response to the court.

During an afternoon recess, attorneys for both sides agreed to keep the case open without a decision. Cochise County Superior Court Judge Wallace Hoggatt approved the agreement. The ballots will be counted, but kept segregated in case there is further legal action.

"We are happy that Cochise County officials are going to be allowed to do their jobs and count these Southern Arizonans' votes," said Barber's campaign manager, Jessica Floyd. "We remain disappointed that Martha McSally's Republican attorneys attempted to insert themselves into the vote counting process, and we will be watching the process closely moving forward."

The request for a temporary restraining order was filed on behalf of William Odle, a Cochise County voter. It said the poll workers in the three precincts did not properly seal provisional ballots in envelopes, and asked that counting of the 130 allegedly mishandled ballots be blocked.

Barber's attorneys argued 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."

Tuesday afternoon, the parties agreed to allow the vote count to proceed, and stipulated that:

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  • The parties have a right to continuing monitoring the vote-count process.
  • The disputed ballots will be counted by machine.
  • The final count, including the disputed 130 ballots, will be provided to the court.
  • The disputed ballots will remain segregated until after the deadline to file an election protest.
  • The two campaigns will each decide if they will protest the disputed ballots.

The vote count has switched back and forth in the week since the election, with Barber maintaining a slender lead over the weekend. The Democratic congressman increased his lead to 829 votes Tuesday afternoon, but dropped back to 654 ahead of McSally after a late-night report from Cochise County. Barber stood at 137,993; McSally had 137,339.

There remained Tuesday over 26,000 ballots to review and tally in Pima County, where Barber holds a lead of more than 8,700 votes. The number of uncounted ballots from CD2 is unavailable.

In less-populous Cochise County, where McSally holds a similar edge of just over 8,000, there were about 9,000 uncounted ballots remaining Tuesday, including about 2,300 provisional ballots that must be verified.

Floyd said Tuesday morning that "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."

"We respect the ballot counting process currently taking place and want to see it move forward," Floyd said.

Requests to the McSally campaign and the National Republican Congressional Committee were not immediately answered, but McSally did release a statement Tuesday evening.

"Many have laid down their lives to protect our freedom and right to vote. The integrity of our elections is the cornerstone of our democracy," she said via email. "Given some very troubling irregularities with the security of ballots in Cochise County, I'm pleased that today's outcome ensures that all legal cast ballots are counted while safeguarding the will of the voters."

Arizona Democrats weighed in against the filing Tueday.

"The actions of Martha McSally and her campaign to disqualify provisional ballots in a majority Latino precinct and in other parts of Congressional District 2 are both deplorable and desperate," said state Democratic Party Executive Director Luis Heredia.

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Latest comments on this storyRead all 4 »

Nov 13, 2012, 4:44 pm
-0 +1

@Dylan Smith

I am well aware of that. If the provisional ballot fiasco wouldn’t have happened here in Pima County, then neither campaign would be going to court over a paltry 130 votes. The negligence of what happened here predicated the subject for this story.

Nov 13, 2012, 4:36 pm
-0 +1

@Bret Linden,

F. Ann Rodriguez is the recorder for Pima County; this case was filed in Cochise County.

Nov 13, 2012, 4:22 pm
-1 +0

I bet very few of you will remember this debacle next time Ann Rodriguez’ name is on a ballot…because she has the “D” that forgives all of her sins, right? Seems to be the way things work around here…

That said, I’m not what the race baiters would call “latino”. I live in CD2, I voted for McSally, and my vote still hasn’t been counted yet.

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Joshua Pearson/TucsonSentinel.com

McSally speaks to supporters at her election night gathering.