The rematch between Republican Martha McSally and Democrat Ron Barber in the Congressional District 2 race is still too close to call, with the gap between them down to 179 votes in McSally’s favor.
The latest results from the Pima County Elections Department on Monday night moved the differential well within the 200-vote difference that would trigger an automatic recount. But there are still 4,904 provisional ballots to be counted in Pima County before that becomes a consideration.
On Sunday night, McSally, a retired Air Force colonel, had a 341-vote lead over Barber, the Democratic incumbent.
Earlier Monday, a legal battle played out between the two campaigns, as the McSally camp attempted to have an unknown number of provisional ballots potentially disqualified because they lack the signature of a poll worker.
Citing no risk of irreparable harm and an unlikelihood of prevailing at trial, Pima County Superior Court James Marner denied McSally’s request to stop counting some ballots.
McSally’s legal team wanted Marner to order a “segregation” of any provisional ballots missing a poll worker’s signature.
“We’re not saying these ballots should not be counted,” McSally attorney Brett Johnson said at Monday’s hearing. Instead, he said they should be set aside for further verification before the counting continues.
It is unclear how many of the roughly 9,000 provisional ballots were subject to the McSally legal challenge.
There are several possible reasons voters might not be issued a regular ballot at the polling place, including losing their early ballot, not having their photo identification or being registered at an address in another precinct.
Election laws require that such voters be issued a provisional ballot.
Johnson said on Monday the issue was one of election integrity and potential error on the part of elections officials.
He warned that once the ballots get processed, they are separated from the paperwork an election worker filled out at the polls and the two can never be matched up again.
“All we’re asking for now is a stay,” Johnson said.
Daniel Jurkowitz, with the Pima County Attorney’s Office, argued there was no valid reason to stop counting the ballots in question.
“I think it would be just incredibly improper to cast aside a voter’s ballot when they didn’t do anything wrong,” Jurkowitz said.
Attorney Dan Barr, representing Barber’s campaign, elaborated on the argument, saying nothing in state law or the secretary of state’s election manual allows for ballots to be excluded under this circumstance.
“This is a seizure upon a technicality, and the technicality is not recognized in statute,” Barr said.
Pointing to a section of the elections manual, Barr noted three of the factors needed for ballot verification, including verification of registration , the voter’s signature doesn’t appear on other rosters for that election and there’s no record the voter cast an early ballot.
Pima County Elections Director Brad Nelson was called to testify at the hearing, as was Pima County Deputy Recorder and Registrar of Voters Chris Roads.
Arizona Secretary of State Ken Bennett testified by telephone.
In his ruling, Marner noted the processing and verification of provisional ballots would occur in the same manner whether a poll worker signed a ballot or not.
While the petition for temporary restraining order was denied, the underlying complaint in the case is still before the court.
McSally campaign spokesman Patrick Ptak said the campaign was disappointed by the decision.
“Southern Arizonans deserve to know that all procedures are being followed to ensure ballots are valid and that rules aren’t simply being decided on a whim,” Ptak said.
Ashley Nash-Hahn, a spokeswoman for the Barber campaign, said it was the second time McSally has tried to throw out ballots.
“Today was a win for democracy and a win for the people of Southern Arizona, who will make their voice heard at the ballot box,” said Nash-Hahn.
Pima County election officials are expected to count some 4,000 ballots today.
Several other local legislative races remain too close to call.
- District 9 House race: Democrat Randy Friese has a 182-vote lead over Republican Ethan Orr in their contest for the district’s second House seat.
- District 4 House race: Democrat Charlene
- Fernandez has a 156-vote lead over Republican Richard Hopkins for one of the district’s House seats.
- District 8 Senate race: Democratic state Sen. Barbara McQuire has a 543-vote lead over Republican Irene Littleton.
