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. That includes the fact the ink does not smear and create problems as the ballots are fed through counting machines.
But Liddy told Judge Margaret Mahoney the lawsuit filed by attorney Alexander Kolodin would amount to giving outsiders access to actual ballots. That, he said, would compromise the integrity of secret ballots.
Liddy said that 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.
Liddy said 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.
“That’s just not factually true,’’ he said. Liddy said anyone whose ballot was kicked out is automatically given the option of getting a new one.
Yet 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. Those already have been counted.
“The requested remedy is impossible,’’ he said.
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 Mahoney to allow members of the public into offices where ballots are being tabulated. He said that would help answer questions of what happens when Sharpies are used and whether these are not automatically tabulated.
Those questions are is based on allegations by Kolodin that Laurie Aguilera, his client, had her ballot rejected after she used a felt-tipped pen and it bled through the paper. Kolodin said she was denied a new one.
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 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, he argued, the 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.
Sarah Gonski, who represents the Arizona Democratic Party, reminded Mahoney that if the county count is delayed, completing the final state tally is affected. 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, 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. He, in turn, has said there isn’t a problem and the Sharpies were recommended because the ink dries fast and doesn’t gum up counting machines.
That, in turn, drew a sharp response from Bo Dul, the state elections director, who reports to Democrat Secretary of State Katie Hobbs. 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.