Pima County Recorder F. Ann Rodriguez has concerns about allowing people who are not election officials to start calling people and telling them their ballots may not be counted. “It confuses the voter,” she said.

 Rick Wiley / Arizona Daily Star 2020

PHOENIX — The Arizona Democratic Party is not entitled to real-time access to a list of voters whose signatures on early ballot envelopes do not match what’s on file, or who forgot to sign, a judge ruled late Wednesday.

The information sought is a public record, and, in general, such records must be produced “promptly,” Maricopa County Superior Court Judge Scott McCoy acknowledged.

But McCoy said that can be overcome if the government demonstrates “specific material harm or risk to the best interests of the state.” And he said Maricopa County Recorder Adrian Fontes has shown that being forced to produce those records meets that burden.

“The state of Arizona has a strong interest in promoting public confidence in elections,” the judge wrote. McCoy said he was convinced by Fontes’ arguments that releasing that information prior to Election Day creates a “potential for voter confusion, frustration and suppression.”

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Nothing in Wednesday’s ruling legally affects a nearly carbon-copy case filed by the Democrats against Pima County Recorder F. Ann Rodriguez, which is set for a hearing in Tucson Thursday, Oct. 22, before Judge Catherine Woods.

But Rodriguez is making the same arguments as Fontes. And that could help convince Woods to reach the same result.

There was no immediate response from attorneys for the party about whether they will appeal.

On Wednesday, before the ruling, the Arizona Republican Party, said it, too, will request the same records.

The state GOP is interested in getting as many ballots from registered Republicans counted as possible, just as the Democrats are trying to do with their voters, said Zach Henry, spokesman for the state GOP.

The Democratic Party’s lawsuits, meanwhile, contend the party needs the information to contact early voters — or at least the ones registered as Democrats — to help them make fixes to get their ballots tallied.

Arizona law says ballots submitted with signatures that do not match what is on file cannot be counted. But the law does give the voters a chance to “cure” or fix the signatures by contacting election officials within five business days after the election.

A separate law also forbids counting ballots where individuals forgot to sign the ballot envelopes at all. But those voters have only until 7 p.m. on Election Day to come to a county office and make the fix.

If the Arizona Democratic Party “is not provided the records it has requested, it will be unable to assist these eligible voters, including its members and constituents, in making sure that their ballots count in the November 2020 election,” attorney John Gray wrote for the party. He said that will end up “frustrating its mission and also directly harming its members and constituents whose right to vote will be denied.”

Fontes urged the judge to reject the request, at least in part over practical considerations.

“It would cost us, literally, hundreds and hundreds of man-hours of work to actually create a real-time list and distribute it and monitor it the way that they’re asking for,” he said.

If the information is a public record, it would have to be provided to anyone who asks, Fontes said.

“If I give them this information, then everybody else gets to have this information,” he said, all of which would be available while voting is still going on. “And now you have chaos.”

Rodriguez said she has similar concerns about allowing people who are not election officials to start calling people and telling them their ballots may not be counted.

“It confuses the voter,” she said. “We want the voter to answer to us so we can process their ballot.”

There’s the chance of mischief by political parties, she said.

“The way politics is played, I wouldn’t put it past either one of them to target the opposite (party) and say, ‘Don’t worry, you don’t have to call, your ballot’s been resolved,’ ” Rodriguez said.

“We want the voters to respond to our calls, not talking to you,” she said of outsiders, including political parties.

Fontes and Rodriguez both said the decision to fight the lawsuits is not political. In fact, both are Democrats.

But the recorders said what the parties want is unnecessary.

“We’ve been doing it since early voting started,” Fontes said about contacting voters if the signatures on the envelope do not match the signatures on file.

“That’s why we ask folks to put their phone number on there so we can have the quickest, easiest way to contact the voter to verify their identity and ensure that their ballot gets cast,” he said. “That’s our goal.”

“I think that the Democratic Party is well intentioned,” Fontes said. “But I don’t think it’s an appropriate request at this time.”

It would be appropriate after Election Day, he said, when people still can “cure” problems with the signatures on their ballots, but when there is less chance of creating confusion, according to Fontes.

That offer to provide the list beginning Nov. 4 did not satisfy the Democrats, with Gray pointing out the Election Day deadline to fix ballots that arrive in envelopes that are not signed. An offer for postelection data, he said, “effectively renders ADP’s request futile.”

Gray also said there is no intent to mislead anyone. “Specifically, volunteers from ADP call voters, clearly identify themselves, ask if the voter has already been made aware of the need to cure a deficiency, and then provide information on steps the voter can take to cure the deficiency,” Gray wrote in his legal filings. “Volunteers work carefully to provide accurate information to voters about how they can cure their ballots.”

The issue apparently is limited to these two counties. Recorders in the other 13 counties have agreed to furnish the information, according to testimony in the Fontes case.

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