PHOENIX — 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.
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 can’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 isn’t the physical space to accommodate all of them.
And there’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. “That’s just not factually true,” 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 — and nothing to do with the ones that were cast at voting centers which already have been counted.
“The requested remedy is impossible,” Liddy said.
But Kolodin said there are legitimate questions about whether the use of felt-tipped pens and whether they result in uncounted ballots — what has been dubbed #SharpieGate on the internet — 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 Sharpie’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 — 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 there’s no reason for a full blown hearing that could take more than a week. In fact, Liddy argued, that idea that there’s some basis for what Kolodin is alleging undermines public confidence in the voting process.
“The 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,” Liddy said.
“It’s not true,” he continued. “But it’s really scaring people.”
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 isn’t a problem and that the Sharpies were recommended because the ink dries fast and doesn’t gum up counting machines.
The Attorney General’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 “imagined controversy” and “unfounded conspiracy theory” 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 General’s Office “will cease perpetuating a conspiracy theory that undermines the hard work of Arizona’s election administrators, poll workers and voters.”
The case is likely to drag on into the coming week.
Photos: 2020 General Election in Pima County and Arizona
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Judge throws out lawsuit, finds no fraud or misconduct in Arizona election
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PHOENIX — A judge tossed out a bid by the head of the Arizona Republican Party to void the election results that awarded the state’s 11 electoral votes to Democrat Joe Biden.
The two days of testimony produced in the case brought by GOP Chairwoman Kelli Ward produced no evidence of fraud or misconduct in how the vote was conducted in Maricopa County, said Maricopa County Superior Court Judge Randall Warner in his Friday ruling.
Warner acknowledged that there were some human errors made when ballots that could not be read by machines due to marks or other problems were duplicated by hand.
But he said that a random sample of those duplicated ballots showed an accuracy rate of 99.45%.
Warner said there was no evidence that the error rate, even if extrapolated to all the 27,869 duplicated ballots, would change the fact that Biden beat President Trump.
The judge also threw out charges that there were illegal votes based on claims that the signatures on the envelopes containing early ballots were not properly compared with those already on file.
He pointed out that a forensic document examiner hired by Ward’s attorney reviewed 100 of those envelopes.
And at best, Warner said, that examiner found six signatures to be “inconclusive,” meaning she could not testify that they were a match to the signature on file.
But the judge said this witness found no signs of forgery.
Finally, Warner said, there was no evidence that the vote count was erroneous. So he issued an order confirming the Arizona election, which Biden won with a 10,457-vote edge over Trump.
Federal court case remains to be heard
Friday’s ruling, however, is not the last word.
Ward, in anticipation of the case going against her, already had announced she plans to seek review by the Arizona Supreme Court.
And a separate lawsuit is playing out in federal court, which includes some of the same claims made here along with allegations of fraud and conspiracy.
That case, set for a hearing Tuesday, also seeks to void the results of the presidential contest.
It includes allegations that the Dominion Software voting equipment used by Maricopa County is unreliable and was programmed to register more votes for Biden than he actually got.
Legislative leaders call for audit but not to change election results
Along the same lines, Senate President Karen Fann and House Speaker Rusty Bowers on Friday called for an independent audit of the software and equipment used by Maricopa County in the just-completed election.
“There have been questions,” Fann said.
But she told Capitol Media Services it is not their intent to use whatever is found to overturn the results of the Nov. 3 election.
In fact, she said nothing in the Republican legislative leaders’ request for the inquiry alleges there are any “irregularities” in the way the election was conducted.
“At the very least, the confidence in our electoral system has been shaken because of a lot of claims and allegations,” Fann said. “So our No. 1 goal is to restore the confidence of our voters.”
Bowers specifically rejected calls by the Trump legal team that the Legislature come into session to void the election results, which were formally certified on Monday.
“The rule of law forbids us to do that,” he said.
In fact, Bowers pointed out, it was the Republican-controlled Legislature that enacted a law three years ago specifically requiring the state’s electors “to cast their votes for the candidates who received the most votes in the official statewide canvass.”
He said that was done because Hillary Clinton had won the popular vote nationwide in 2016 and some lawmakers feared that electors would refuse to cast the state’s 11 electoral votes for Trump, who won Arizona’s race that year.
“As a conservative Republican, I don’t like the results of the presidential election,” Bowers said in a prepared statement. “But I cannot and will not entertain a suggestion that we violate current law to change the outcome of a certified election.”