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A Foreseeable Train Wreck in Arizona's Elections

By Jon Sherman | February 3, 2015

Today, the recount began in the race for Arizona's Second Congressional District seat, and as of now, challenger Martha McSally leads Rep. Ron Barber by a mere 161 votes. Elections that are this close dramatically underscore the need for fair rules that preserve every last validly cast vote. But in every general election in Arizona, thousands of voters' ballots are rejected simply because they were cast, usually by mistake, in the wrong precinct. In this election, Pima County's section of CD-2 had 240 provisional ballots rejected because they were cast in the wrong polling place. That number is already above the current margin, and if it stays constant, Arizona's rejection of those 240 ballots could have played a decisive role.

Arizona has led the nation in some areas of election administration such as online voter registration but has lagged behind on provisional ballot counting. By Arizona law, a provisional ballot cast in the wrong precinct is rejected top to bottom. That means a voter who shows up at, or is directed by a poll worker to, the wrong precinct will have all of her votes discarded. That includes federal and statewide offices on the ballot in their correct precinct. Arizona typically ranks first or among the top states in this specific type of disenfranchisement. In the 2012 general election, 10,979 provisional ballots were rejected in full because they were cast in the wrong precinct. This was the highest state total of wrong-precinct rejections in the country.

There is an alternative. Fifteen states including Georgia, Illinois, New Mexico, and Kansas have adopted partial counting laws. These laws require the counting of all votes on an out-of-precinct provisional ballot that the voter would have been eligible to cast in his or her correct precinct. These states prioritize voter eligibility over a mistake in location. It is a compromise that salvages validly-cast votes but also penalizes the voter in discarding their down-ballot votes. Arizona should adopt this common-sense reform and forever prevent close races from being decided on a technicality.

Since Arizona is not an Election Day registration state, which would minimize provisional ballot usage, the least it can do is fix the problem on the back end and count as many votes as possible on out-of-precinct provisional ballots. No one disputes that those voters are eligible to cast a ballot; they are simply in the wrong place, typically because of an innocent mistake or a poll worker's error. Punishing voters for understandable errors undermines the most basic right in our democracy, while the solution poses no risk to electoral integrity. Numerous states already preserve votes on out-of-precinct provisional ballots, and that should be the rule in Arizona as well.

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Jon Sherman is an attorney with the Fair Elections Legal Network.


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