Election 2018 Arizona

An elections official counts ballots at the Tabulation and Election Center, Tuesday, Nov. 6, 2018, in Phoenix. Election officials said that they routinely manually look at ballots with stray marks — including what are considered "overvotes" — to determine the intent of the voter.

PHOENIX — Voters in at least one Arizona county are getting instructions on how to “correct” a wrong vote that may be illegal.

And a judge is going to allow that to continue, for at least the time being.

Maricopa County Superior Court Judge James Smith has ruled that challengers to the practices of County Recorder Adrian Fontes have a “likelihood of success” if and when the case goes to a full-blown trial. He said it appears that Fontes acted illegally in telling voters they can cross out the wrong vote they cast and then vote as they wanted, all without requesting a new ballot.

But Smith said that Fontes already has printed up 2.5 million instructions with the legally suspect directions.

And he said it makes no sense, either logistically or financially, to order new ones be printed now. So he refused to issue such an order.

Fontes sees this as a victory. A spokeswoman said it ensures that “every lawful vote is counted.”

But attorney Alexander Kolodin said Smith got it wrong. And he told Capitol Media Services he will be filing an appeal.

For the moment, it appears that Maricopa County is the only one sending out the do-it-yourself fix instructions to its voters.

But election officials in other counties have told Capitol Media Services that they routinely do what Fontes is doing: manually look at ballots with stray marks — including what are considered “overvotes” — to determine the intent of the voter.

And the outcome of this case could determine how much latitude they have to tell voters.

Kolodin said that’s why he is interceding on behalf of the Public Integrity Alliance, a group that generally — but not always — aligns with conservative Republican interests — because he fears that what Fontes is doing will amount to “planned chaos” which will delay final election results.

“A delay obviously will provide time for malfeasance,” he said. And Kolodin said that in instructing voters they can correct their ballots it will cause more to have to be examined by hand, a process that “at least opens up the process for human error.”

In general, voters for years have been told that if they make a mistake they should request a new ballot, whether they got one in the mail or are voting in person.

But Smith pointed out that all ballots with stray marks are kicked out of the automated counting system to be examined by hand. And, if in fact, someone crossed out one name and then filled in the mark for the other candidate, the process will try to count that vote.

What Kolodin challenged was actually telling people they can do that, something that was not done until the August primary. He asked that Fontes be blocked from sending the same instructions out for the November primary, with early ballots going out in about a month.

Kolodin, an unsuccessful candidate in the Republican primary to oust state Sen. Michelle Ugenti-Rita of Scottsdale, is not alone in his views.

Attorney General Mark Brnovich, also a Republican, filed his own legal briefs.

He said contends that what the Democrat county recorder is telling voters runs afoul of an official Election Procedures Manual which says to tell voters to “request a new early ballot” if they make a mistake. And Brnovich said individual elections officials are not free to ignore the manual.

Fontes, for his part, said it’s not that simple.

First, he said both state and federal law require elections officials to review ballots for smudges, ambiguous marks and corrections to determine “voter intent.” And Fontes specifically said the federal Help America Vote Act requires counties to provide voters with “instructions on how to correct the ballot before it is cast and counted.”

Fontes is not disputing what the manual says. But he pointed out that the legislature in January approved “electronic adjudication” procedures to provide for bipartisan review of ballots when automated tabulation equipment cannot determine voter intent.

He said the manual was not updated to reflect how counties that use this process should inform voters of their option to correct a ballot.

Kolodin is not asking that corrected ballots not be counted. That, he said, is a question for another day.

In fact, he does not dispute that election officials can examine ballots to determine voter intent.

But what he did seek from Smith is an injunction against the ballots being sent out with what he said is erroneous instructions.

“What Fontes is planning is planned chaos,” Kolodin said.

“There’s obviously a difference between handling a few mistake ballots, like if somebody spilled their coffee, and encouraging people to spoil their ballots which is going to lead to a much larger number,” he said.

And that, said Kolodin, is where the possibility of mischief comes in.

He tried the same argument about the possibility of fraud with Smith. But the judge wasn’t buying it.

“There is no evidence of this occurring or a reasonable likelihood of it occurring,” he wrote.

Smith said the director of the National Counterintelligence and Security Center has said foreign states will seek to sow discord and try to call into question the validity of election results.

“However, it would be difficult for our adversaries to interfere with or manipulate voting results at scale,” the judge said.

The Public Integrity Alliance was at the forefront of unsuccessful efforts to void Tucson’s unique modified ward system of electing council members by nominating them by ward and electing them at large, a system some said gave advantages to Democrats.

It also has successfully challenged laws requiring statewide candidates to get petition signatures from at least three counties, fought to have Republican Susan Bitter Smith removed from the Arizona Corporation Commission because she was a registered lobbyist, and urged then-Attorney General Tom Horne to resign over a hit-and-run minor accident with a parked car and an alleged affair with a former employee.