Posted by AzBlueMeanie:
The Tucson Weekly reports that Team McSally is trying to suppress conditional ballots from Latino districts in Cochise County by seeking a temporary restraining order to prevent provisional ballots from being counted on the specious grounds that the enclosure envelope was not sealed before being presented to election officials.
Spoiler alert: there is nothing in the statutes that require a sealed envelope -- the ballots were accepted by poll workers, so the chain of custody was complete. CD2 Update: Republicans Go to Cochise County Court To Block Counting of Provisional Ballots in Latino Precincts:
[Martha McSally's] attorneys were in Cochise County court today in an effort to block the counting of provisional ballots in a predominantly Latino precinct.
Barber’s campaign manager, Jessica Floyd, said it was an effort by Team McSally to disenfranchise Cochise County voters.
"We respect the ballot counting process currently taking place and want to see it move forward,” Floyd said in statement. “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.”
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Attorneys Eric H. Spencer and Michael Liburdi of the Snell and Wilmer law firm claim that approximately 130 provisional ballots should not be counted because they “have been spoiled because they were not sealed, as required, when they were transported from the Castro Park, Ramsey and Hopi Precinct polling locations to the Cochise County Elections Department and Recorder’s Office.”
The lawyers have asked for a temporary restraining order to keep the Cochise County Division of Elections from counting the ballots.
But attorneys Paul F. Eckstein, Dan Barr and David Gaona of the Perkins Coie law firm, which is representing Barber, say that Judge Wallace R. Hoggart should reject the request for a temporary restraining order because Spencer and Liburdi “simply cannot point to anything in section 16-584(D)—or any section of the election code, for that matter—which would require that provisional ballots be sealed when presented to election officials for verification.”
Arizona Revised Statutes §16-584. Qualified elector not on precinct register; recorder's certificate; verified ballot; procedure, provides in pertinent part:
D. On completion of the ballot, the election official shall remove the ballot stub, shall place the ballot in a provisional ballot envelope and shall deposit the envelope in the ballot box. Within ten calendar days after a general election that includes an election for a federal office and within five business days after any other election or no later than the time at which challenged early voting ballots are resolved, the signature shall be compared to the precinct signature roster of the former precinct where the voter was registered. If the voter's name is not signed on the roster and if there is no indication that the voter voted an early ballot, the provisional ballot envelope shall be opened and the ballot shall be counted. If there is information showing the person did vote, the provisional ballot shall remain unopened and shall not be counted. When provisional ballots are confirmed for counting, the county recorder shall use the information supplied on the provisional ballot envelope to correct the address record of the voter.
There is also §16-580. Manner of voting; assistance for certain electors:
D. Before leaving the voting booth the voter shall fold the ballot lengthwise and crosswise, or place the voter's card in the ballot envelope, but in such a way that the contents of the ballot shall be concealed and the stub, if any, can be removed without exposing the contents of the ballot and shall keep the ballot folded until the voter has delivered it to the inspector, or judge acting as such.
Got that? The ballot just needs to be in the envelope, there is no statutory requirement that it be sealed.
Moreover, a "spoiled ballot" is defined by statute and -- surprise! -- it does not include McSally's lawyers' fictional definition of "spoiled." Arizona Revised Statutes §16-585. Spoiled ballots; disposition, provides in pertinent part:
If a voter spoils a ballot or ballot card and obtains another, the inspector and one of the judges shall write on the back thereof the words "returned spoiled", sign their names thereto, and without opening the ballot, string it upon a string provided for that purpose and return it with the stubs of voted ballots to the board or persons from whom the ballots were originally received.
If the ballots were "spoiled" they must be marked as "returned spoiled" and signed by a poll judge. If they are not, they are not "spoiled" ballots. McSally's lawyers don't get to just make shit up. This is bullshit and they should be ashamed for seeking to suppress votes. Count every ballot!
The legal briefs in the case:
GOP Request for TRO (.pdf).
Barber Response (.pdf).
UPDATE: The plaintiff in this case is an elector in Cochise County, some doofus named William Odle, not the McSally campaign. McSally campaign spokesman Yancy Williams said McSally’s campaign did not file the suit. “Clearly we have a vested interest in the matter,” Williams said. h/t Arizona Capitol Times.
UPDATE: Democratic Party Executive Director Luis Heredia weighs in with a statement:
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. The attempts to use temporary restraining orders in hopes of swaying this election's outcome threatens voters' rights and should be taken seriously. If this is the tone that McSally wants to set, she clearly does not know the district nor does she possess the qualities of leadership that are needed. This is a desperate campaign that seems to think the only way it can win is to cherry-pick votes.
UPDATE: The Arizona Daily Star reports Both camps in CD2 agree to count 130 provisional ballots - for now:
Tuesday's lawsuit alleged election officials failed to properly seal the 130 provisional ballots in envelopes.
But before a judge could render a decision, the lawyers for the parties involved reached an agreement to count the ballots but set them aside just in case the margin between McSally and Democrat Ron Barber is close enough to warrant a second look, according to attorney Eric Spencer, who represents the McSally supporter who filed the lawsuit.
Barber campaign manager Jessica Floyd said the Barber campaign was pleased that Cochise County election officials will be allowed to count the votes, but was troubled by how the McSally campaign is injecting itself into the process.
"We remain disappointed that Martha McSally's Republican attorneys attempted to insert themselves into the vote-counting process," Floyd said. "We will be watching the process closely moving forward."