PHOENIX โ€” An attorney for Maricopa County asked a judge late Thursday to toss out a lawsuit attacking the use of Sharpies to mark ballots and demanding more public access to the counting process.

Tom Liddy said the county has no problem telling those who believe the felt-tipped pens are causing problems about why election officials chose them to have voters fill in the ovals that mark their choices on ballots. That includes the fact that the ink does not smear and create problems as the ballots are fed through counting machines.

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But Liddy told Judge Margaret Mahoney that the lawsuit filed by attorney Alexander Kolodin would amount to giving public access to actual ballots. That, he said, would compromise the integrity of secret ballots.

Liddy said it just canโ€™t happen. With challengers saying there could be thousands of people who have questions about whether their ballots have been counted, Liddy said there just isnโ€™t the physical space to accommodate all of them.

And thereโ€™s something else.

The complaint is from people who say their ballots were rejected when they cast them in person, at voting centers, because of the use of the Sharpie, he said. โ€œThatโ€™s just not factually true,โ€ he said. Anyone whose ballot was kicked out is automatically given the option of getting a new one, he said.

Further, Liddy said what challengers appear to want is to view the current counting process. But what is going on now deals only with mail-in ballots โ€” and nothing to do with the ones that were cast at voting centers which already have been counted.

โ€œThe requested remedy is impossible,โ€ Liddy said.

But Kolodin said there are legitimate questions about whether the use of felt-tipped pens and whether they result in uncounted ballots โ€” what has been dubbed #SharpieGate on the internet โ€” requires court intervention.

At the very least, Kolodin said he wants the judge to allow members of the general public into offices where ballots are being tabulated. He said that would help answer questions of what happens when Sharpieโ€™s are used and whether these are not automatically tabulated. Representatives of both major parities already monitor the counting process.

Those questions are based on claims by Kolodin that Laurie Aguilera, his client, had her ballot rejected after she used a felt-tipped pen and it bled through the paper. And Kolodin said she was denied a new one.

And Sue Becker of the Public Interest Legal Foundation, who is working with Kolodin, said this could affect thousands of ballots.

They want Mahoney to order a closer look at the whole issue, determine if ballots were being improperly thrown out โ€” and even order that voters be allowed to watch to see if a new ballot is accepted by Maricopa County tallying machines.

Liddy countered that anyone can go online now and watch the counting process, including what happens if the machinery kicks out a ballot due to problems.

He also said thereโ€™s no reason for a full blown hearing that could take more than a week. In fact, Liddy argued, that idea that thereโ€™s some basis for what Kolodin is alleging undermines public confidence in the voting process.

โ€œThe voters have a right to know that the allegations flying around the internet about Sharpies being dropped from black helicopters to cheat people out of votes is fake,โ€ Liddy said.

โ€œItโ€™s not true,โ€ he continued. โ€œBut itโ€™s really scaring people.โ€

Mahoney declined to toss the case immediately. But she wants a quick hearing, given that the county needs to complete its official count within 20 days after the election.

And Sarah Gonski who represents the Arizona Democratic Party, reminded Mahoney that if the county count is delayed, that affects completing the final state tally. And that, in turn, could affect the deadline for the state to name the electors who will vote for president.

County officials have said the pens do not cause problems and that, even if there was a bleed-through, there are procedures to ensure that all votes are counted.

In the meantime, the dispute has spilled over into the political arena.

Assistant Attorney General Michael Catlett, who works for Republican Mark Brnovich, is demanding answers about the practice from Maricopa County Recorder Adrian Fontes.

Fontes has said there isnโ€™t a problem and that the Sharpies were recommended because the ink dries fast and doesnโ€™t gum up counting machines.

The Attorney Generalโ€™s Office involvement has drawn a sharp response from Bo Dul, the state elections director, who reports to Secretary of State Katie Hobbs, a Democrat. She fired off a letter to Catlett suggesting that his attempt to intercede in this โ€œimagined controversyโ€ and โ€œunfounded conspiracy theoryโ€ is only undermining public confidence in the process.

Dul also detailed why the use of Sharpies is not a problem, saying that her boss is hopeful that the Attorney Generalโ€™s Office โ€œwill cease perpetuating a conspiracy theory that undermines the hard work of Arizonaโ€™s election administrators, poll workers and voters.โ€

The case is likely to drag on into the coming week.

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