Early-vote problems surfacing in Arizona
Challenges likely in close races

Robbie Sherwood
The Arizona Republic
Oct. 23, 2004 12:00 AM

A series of early-voting glitches and a controversial recount during the primary have opened the door for serious legal challenges in Arizona if the results of the election for president in the state are too close to call.

The result of the recount in the District 20 Republican legislative primary in September could suddenly loom large on Nov. 2. So would a series of smaller-scale problems that have plagued local election officials as they have handled a record number of early-ballot requests and new voter registrations.

The problems in Arizona are not on the scale of those reported in swing states such as Florida and Ohio, but activists and attorneys who work for both Democrats and Republicans will be watching closely on Election Day.
Election-law expert Lisa Hauser, a Phoenix attorney who mainly represents Republicans, said the recount in the District 20 House race raised serious questions about the integrity of the machines that count mail-in ballots throughout Maricopa County.

Hauser's client, Anton Orlich, was leading by four votes on the day of the primary but lost to John McComish by 13 votes after the recount. To the surprise of everyone from Hauser to Secretary of State Jan Brewer, the recount picked up more than 400 new votes after the ballots had been fed through the three machines a second time. Most of the votes appeared on one machine that counted mail-in ballots. The district covers the Ahwatukee Foothills area of Phoenix and portions of west Chandler and south Tempe.

County Elections Director Karen Osborne believes that the votes of people who marked their ballots with unusual items, such as glitter pen or crayon, were missed the first time. Osborne said machines used in the District 20 recount have been tested and retested.

"I guess you can have litigation with anything," Osborne said. "Each of those things in any other election would be a non-controversial issue. But I truly believe the system is solid, and our goal is to get everybody voted that should be allowed to be voted and get them counted in a reasonable time."

Hauser's doubts remain.

"There was really no suitable explanation for the result of that recount," Hauser said. "I told (the county election officials during her legal challenge), 'If you think this is bad, wait until the presidential election. You really need to get this together before then.' "

Scott Bales, an attorney for the John Kerry campaign, has concerns as well.

He is heading up a team of more than 30 Democratic volunteer attorneys who will monitor polls around the state looking for irregularities. They also will try to help quickly mediate any disputes between challenged votes and election officials. Bales said recent problems at the Maricopa County Elections Department and others around the state have "created a lot of uncertainty."

Host of problems

Those problems include:

• More than 5,000 new voter registrations were invalidated because people forgot to check a newly required box verifying that they are U.S. citizens. Election officials have sent three mailings to the prospective voters asking them to check the box and have given them until Election Day to comply.

• Some voters have complained that post offices would not deliver their mail-in ballots because they did not have the proper postage, a 60-cent stamp. Osborne said post offices have been notified that ballots must be delivered whether they have the correct postage or not and that the county will pay for the difference.

• Instructions caused confusion in early ballots on whether pens or pencils should be used when voting. The ballot says to use a ballpoint pen, but an says pencil. Both are fine, election officials say, but voters should avoid felt-tip pens that can bleed through the paper and spoil votes in other areas.

• Elections officials have faced delays in getting early-ballot requests processed and sent back to voters within the required 48 hours. But Maricopa County officials say the delays won't be a factor as they've all but erased their backlog despite a record 522,000 early-ballot requests. Some smaller counties are still playing catch-up.

Most of the concern about the vote has been generated by Democrats, either from party leaders or independent groups such as America Coming Together.

Party spokeswoman Sarah Rosen laid the groundwork for another probable complaint if the results are close: partisanship.

Secretary of State Jan Brewer, the state's leading election official, is not only a Republican but an honorary co-chairwoman of Bush's Arizona campaign. That has prompted Democrats to ask for her resignation, a request she has ignored.

"She served as a spin person for Republicans at their convention and at the presidential debate. She has been very prominent in discussing her support for the president," Rosen said. "One of her biggest duties is to certify the election here in Arizona, so it does bring up a concern and some red flags."

Brewer said her party preference is no secret, and although she is the state's top election officer, it's not her job to count votes. Brewer said she will uphold her oath of office and feels comfortable that election workers throughout the state are also "on the up and up."

"The Democrats just haven't gotten over the fact that I won the election," Brewer said. "The bottom line is the counties do all the tabulation, and I do the canvass. Our Democratic governor and the Supreme Court must sign it as well. I don't see them calling for the governor's resignation as she goes out and campaigns for her candidates, so there you go."

State Republican Party officials will also have legal teams on call around the state in case of problems, but they aren't anticipating any. One reason: They think Bush will take Arizona by a margin too large to challenge. The most recent Arizona Republic Poll showed Bush with a seven-point lead over Kerry in Arizona.

GOP optimistic

"Nationally, people are prepared for a close election, but we don't anticipate it will be very close in Arizona," said state GOP Executive Director Bill Christiansen.

America Coming Together spokesman Michael Frias said policymakers and election officials should have been better prepared for the record efforts to register new voters and encourage early voting. Many of the problems, particularly delays getting ballots back to early voters, could have been avoided with better staffing, Frias said.

"Election officials have left themselves more open to questions about the validity of the election and whether or not everything was done to make sure all the votes were counted and nothing was wrong," Frias said.

"Both parties knew this was going to be a high-turnout election. Every organization knew what was at stake here. For the county recorder's office to not be equally prepared, it's baffling."

Osborne said her budget "is stretched to the limit, but we've gone ahead to take every step we've had to deal with election and do it on time."