Judge nixes Barber request to count more CD2 ballots
A federal judge ruled Thursday that an additional 133 ballots won't be added to the count in the congressional race between Rep. U.S. Ron Barber and Martha McSally. Barber, trailing 161 votes in the final tally, will now pin his hopes for re-election on a mandatory recount set to begin next week.
The Thanksgiving decision may end up handing the election to McSally on a platter.
Attorneys for Barber filed a lawsuit in federal court Monday morning, alleging that ballots in the race were improperly rejected. Last week, Barber asked county and state officials to delay the canvass of the election and include more votes.
The unofficial totals in CD 2 are 109,704 for the Republican challenger, and 109,543 for the Democratic incumbent. The election will be certified by state officials Monday morning, setting in motion a recount because of the narrow margin.
After hearing 90 minutes of oral arguments Wednesday, U.S. District Judge Cindy Jorgenson denied Barber's request to add the votes with a ruling released Thursday.
Writing that "the court is not unsympathetic to the plight of individual voters whose ballots may have been improperly rejected," Jorgenson said that Barber's attorneys didn't build a strong enough case to stop the election process and add more ballots to the count.
The judge, nominated in 2001 by President George W. Bush, said that Barber pointed to "no case where scattered election-procedure violations regarding a small number of voters was found to raise a constitutional violation warranting a federal court’s entry into the details of the administration of an election."
Barber's campaign said they are "disappointed in the Court's decision" but "remain committed to ensuring that Southern Arizonans are able to trust the integrity of this election.
"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," said Kyle Quinn-Quesada, Barber's campaign manager.
"We look forward to an open and transparent recount that will allow all Arizonans to have confidence in the final outcome of the election," he said in a news release.
Saying that "the need for relief is urgent," the 266-page suit asked that 133 ballots in Pima and Cochise counties be added to the count.
If the suit had been successful, Barber would still trail by 28 votes — with McSally having the possibility of pressing to have rejected ballots cast by Republican voters also added to the tally.
Jorgenson noted that in her decision.
"The Court finds that, because the votes of the three individual voter Plaintiffs will not count if a (temporary restraining order) is not issued, Plaintiffs have met their burden of showing irreparable harm," the judge wrote. "However, Plaintiff Ron Barber for Congress’ allegation of irreparable harm is speculative at this juncture. Even if all 133 votes are counted, it is undisputed that Martha McSally wins the election because she leads by a margin of 161 votes at this time."
Three voters — Josh Cohen, Lauren Breckenridge, and Lea Goodwine-Cesarac — joined Barber in pressing the suit, which says the "plaintiffs have no other means of ensuring that their votes—and the lawfully cast votes of all Arizona citizens—are counted."
"I'm 81 years old, and in all my years, I never thought my vote would be tossed in the trash instead of counted," said one of those voters, Lea Goodwine-Cesarac, in a news release from the Barber campaign.
"We're not asking for special treatment, we're asking for our voice to be heard," she told reporters at a news conference Monday morning.
"We are talking about 133 Southern Arizona voters who lived up to their responsibility – they registered to vote and then showed up to vote," said Kevin Hamilton, Barber's campaign attorney. "We are asking the court to ensure that every lawful vote is counted."
The attorney sidestepped questions about why Barber is pressing the issue if there aren't enough uncounted ballots to overcome McSally's lead.
The suit is "not about the horse race. It's not about winners and losers" but about counting all of the votes, he said.
Under Arizona law, the narrow margin in the election will trigger an automatic recount next month. Hamilton said that the campaign has continued to hear from voters who are concerned that their votes were not counted.
McSally's campaign did not respond to requests for comment. Her election lawyers have been requesting thousands of pages of public records related to the vote count.
After both Pima and Cochise counties declined Barber's requests to review more ballots last week, his attorneys wrote to Secretary of State Ken Bennett, asking him to delay the statewide election canvass.
In a letter Friday, Barber's team said that there were 147 ballots improperly rejected from the count in Pima County, and 20 such ballots in Cochise County.
"There is no dispute that these voters were properly registered to vote and were fully qualified to do so as Arizona citizens, yet their ballots remain uncounted," wrote Hamilton.
"Both counties refused to consider or even address these issues, notwithstanding the sworn declarations before them demonstrating innumerable instances of clear poll worker error," wrote the Barber campaign lawyer.
While McSally hasn't made any public comment on the issue, her campaign has asked for thousands of public records, including precinct registers of Pima County voters. Barber's campaign has also requested stacks of documents.
Thursday, Cochise County joined a move by Pima County earlier in the week, rejecting a request by Barber to delay a vote to approve the canvass of the election, a move that would give the Democrat more time to make a case for adding some rejected ballots to the count.
Attorneys for the congressman had asked the Cochise County Board of Supervisors to put off the canvass, providing signed declarations by nine voters who said their ballots had been rejected improperly.
Arizona's 2nd Congressional District covers Cochise and about half of Pima County residents. Because of the narrow margin, an automatic recount will be held next month.
Tuesday, the Pima County Board of Supervisors rejected a similar request to delay the official approval of the count. Barber's campaign said then there were 132 Pima voters in the district whose ballots were improperly tossed out.
In Cochise, the campaign said voters had their ballots rejected because they cast provisional ballots at the wrong locations. One was told by officials that her signature did not match the one on file, attorneys said.
Another 11 voters had their early ballots rejected because they did not sign the affidavit. "There is no rational basis for permitting ballots to be cured where a signature-mismatch determination has been made but not where a ballot is unsigned," Barber's attorneys told supervisors.
In Pima, the Barber campaign on Thursday added 15 affidavits to the 132 sent to supervisors earlier in the week, and said that the county should count those ballots and amend the certified vote count to include them.
McSally has not commented on the issue this week, but issued a call for volunteers Sunday night to assist the campaign on Monday and Tuesday. The Republican was in Washington, D.C., last week, attending orientation sessions for freshman members of Congress, as she did two years ago when she narrowly lost to Barber.
Last Tuesday, her lawyers argued before the Pima board that the supervisors didn't have the authority to delay the canvass. Under Arizona law, the canvass may be delayed if valid ballots are missing from the count.
Barber's lawyers pointed out to supervisors votes that they maintain should be counted, but did not raise the issue of a general election ballot that has apparently gone missing from a batch found mixed with Continental School District votes late last week.
Previously, McSally's lawyers went to court in an attempt to halt the counting of some ballots, but a judge denied the move.
In a letter to the Pima supes on Tuesday, Barber said that errors by poll workers led to voters casting ballots at the wrong locations, while others were mistakenly tossed out because signatures didn't match.
Far from conceding the race, Barber's campaign has stopped short of saying that they'll file a suit to challenge the vote count, but said they'll continue to ask state and local officials to include more ballots in the count.
"Just because mistakes get made, doesn't mean voters get disenfranchised," said an attorney for the incumbent Democrat.
The canvassing process is designed to spot and correct errors, "and ensure the final certified results are correct," said Hamilton, from the Perkins Coie law firm.
"The system broke down here," with voters not directed to the correct polling locations. "This is not a failure of the voters, but a failure of the poll workers," he told reporters last Tuesday.
In Pima County, 776 ballots were rejected for various reasons, with nearly half — 371 — rejected because registered voters went to the wrong polling place, County Recorder F. Ann Rodriguez said last week.
Because the 2nd Congressional District covers only part of Pima County, not all of those ballots are relevant to the Barber-McSally race.
Along with the letter, affidavits from 132 voters were sent to the supervisors, describing why they believe their votes should be counted.
Arizona's first-ever recount in a congressional race will be mandated because the difference between the candidates is 200 votes or less.