PHOENIX — Attorney General Mark Brnovich wants any ballots cast via video screens in next month's election to be set aside — and possibly not counted.
In a new filing Tuesday, Brnovich acknowledged Monday's ruling by Maricopa County Superior Court Judge Randall Warner that state laws requiring special election boards to deliver ballots to voters "in person" are trumped by federal laws requiring states to make "reasonable accommodations" for those with disabilities.
And an aide to the attorney general said he will not appeal Warner's ruling.
But Brnovich said he wants to be sure that the process blessed by Warner is limited to those who truly cannot have face-to-face contact. And he said the proof will be in how many such video ballots are cast in November, which is why he wants them separated and not counted until after Election Day.
And there's something else.
"It is necessary to determine who utilized the virtual voting procedures," the attorney general said. "Further, in the event the virtual voting procedures are abused, preserving the ballots prevents unlawful ballots from being counted."
That, however, opens the door to what could be a potentially personally invasive inquiry into whether each person who cast a video ballot actually had no other way to vote.
The dispute is over "special election boards" available in all counties. These are two-person boards, one from each major party, who go to nursing homes, hospitals, private homes and elsewhere to aid those who are physically unable to fill out an early ballot and cannot go to the polls on election day.
By law, these boards must deliver the ballots "in person," with a requirement for an actual signature.
Maricopa County Recorder Adrian Fontes, however, set up a policy that allows the boards to instead present the ballots via video to those who cannot get direct contact. That can include nursing homes and facilities where access is restricted due to COVID-19 as well as individuals, wherever they live, who may have compromised immune systems and not want to interact with others.
Secretary of State Katie Hobbs followed suit, sending out similar guidelines to all counties.
On Monday, Warner rejected arguments by Brnovich that there are no exceptions to that "in person" requirement. He said federal laws preclude discriminating against those considered "disabled."
In his new filing, Brnovich said he has no problem if that's the extent of it, with the special procedure limited to a "handful" of voters. And there was evidence presented that just 44 people used the process in the presidential preference primary earlier this year and the regular August primary.
"The state agrees there would be little indication of abuse of the video voting procedures," wrote Assistant Attorney General Jennifer Wright for her boss. "However, in the event there is a significant increase in the use of videoconferencing technology during the November 2020 general election, it may become necessary to determine if use of videoconferencing technology in specific circumstances was actually necessary to permit a disabled voter to vote."
And that, Wright said, requires putting all of these ballots cast by video aside until at least Nov. 4, the day after the election.
Brnovich said there needs to be an inquiry into whether the election boards made the necessary "fact-intensive investigation" about whether a specific voter qualified for the "reasonable accommodation" required by federal law and being excused from actually handling the ballot and signing it.
The judge has not set a hearing. But he had indicated during a hearing on Monday he was willing to consider it.