PHOENIX โ€” A new lawsuit late Wednesday charges that ballots are being invalidated because voters are using Sharpie pens โ€” exactly what they are told to use by Maricopa County election officials.

Attorney Alexander Kolodin claims that Laurie Aguilera showed up at her polling place on Election Day and was provided with that marker. He said Aguilera noticed the ink was bleeding through.

Video by Jasmine Demers / Arizona Daily Star

Kolodin said when the electronic ballot box failed to "properly register" her vote she requested a new ballot, but was refused.

Now he wants a judge to order the county to identify any ballots that did not go through. And Kolodin wants the court to give Aguilera and any other affected vote "to be present in person to observe the counting of ballots and the adjudication of voter intent by election workers for ballots that could not be read by machine."

Maricopa County Recorder Adrian Fontes told Capitol Media Services he had not yet seen the lawsuit. But he labeled what has been dubbed #SharpieGate as "hoo hah."

Fontes said bleed-through used to be a problem with the former system, complete with ink gumming up the tabulating equipment.

But he said the new system just leased by county supervisors for $6.5 million is specifically designed to use fine-tip Sharpies with fast-drying ink to fill in the ovals next to a candidate's name. And he said the ballots are designed so that what's on the back is offset by what's on the front. The off-set means that even with some bleed-through, it would not affect any vote on the opposite side.

"It's a perfect example of misinformation and disinformation," he said.

But the dust-up was enough to Michael Catlett, an assistant state attorney general, to send a letter to Maricopa County election officials on Wednesday asking where Sharpies were provided to voters, how many ballots were rejected at each voting centers, and how many of these were rejected for "over-votes," which could occur if a bleed-through improperly marks a race on the other side of the ballot. Catlett also wants to know what it means when a voter is told on an election web site that his or her ballot was "canceled."

He wants an answer by noon on Thursday.

In Pima County, officials put out a notice calling the controversy about the Sharpie pens "false."

"Don't get caught up in it," a post on the county's official Twitter site says. "Arizona ballot tabulating machines can read ballots marked with a felt tip pen."

The post does say these kinds of pens are "discouraged" because of a bleed-through problem. But it says if that occurs, election workers duplicate the ballot so it can be read by the scanner.

"All ballots in which voter intent can be discerned will be counted," the post says. "No ballots will be discarded because of the method used to color in the ovals."

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