Legal Battle Emerges as Arizona Senate Vote Count Drags On

'Outstack' ballots could become the next 'hanging chad' scenario

Martha McSally, Kyrsten Sinema
Martha McSally, Kyrsten Sinema / Getty Images
November 8, 2018

Republican groups in Arizona have filed suit against several of the state's county recorders and the secretary of state arguing that different standards are being applied to the counting of some mail-in ballots that were dropped off at polling locations.

According to the Arizona Republic, the suit was filed late Wednesday at a point when GOP candidate Martha McSally had a lead of about 17,00 votes against Democratic candidate Kyrsten Sinema. At the same time, there were varying estimates of about 650,000 votes yet to be counted statewide.

The two congresswomen are running to fill the seat vacated by the retirement of Republican senator Jeff Flake.

The plaintiffs in the suit are the separate Republican Party divisions for the counties of Yuma, Navajo, Apache, and Maricopa, and the complaint deals with the signature verification process for mail-in ballots.

In those cases where the signature on file does not match the signature on the ballot, the county recorder may call the voter to verify if the person did in-fact sign the envelope containing the ballot.

The GOP suit argues state law allows this process of verification up to and including election day, but not after, and claims different counties are employing different methodologies.

"A foundational principle of American democracy and our justice system is that all votes are treated equally," Arizona Republican Party Chairman Jonathan Lines said in a statement to the Arizona Republic.

"This equal protection under the law is enshrined in our Constitution. It is not fair nor just that voters in one county are treated differently under the law from other voters in Arizona. This suit seeks immediate redress of any inequality between ballots cast across Arizona. We stand behind our local county parties demand for equal treatment."

A tweet late Wednesday from Garrett Archer, a data analyst with the Arizona secretary of state's office, estimated about 475,000 ballots outstanding in Maricopa County, 59,000 ballots remaining in Pima County, and another 35,000 outstanding in Pinal County, with a handful of other counties having about 5,000 or fewer outstanding ballots as well.

Sinema was already narrowly leading in Maricopa County, but had performed much better than expected in Pima County, while Pinal appeared to be solid McSally territory, according to the votes already counted and posted on the Arizona secretary of state's website midday Thursday.

Lurking behind the legal action is the idea that thousands of ballots in Maricopa County or even across the state may have to be manually recounted due to the markings on the ballot, which the clerks call "outstack" ballots. These ballots may have ink from the voter's mark which bled all the way through the paper thereby affecting the way the computer scanned the opposite side of the ballot.

Similar to Florida's "hanging chad" scenario of the 2000 vote count between Al Gore and George W. Bush, some of these outstack ballots can be reviewed by several voting officials in order to ascertain the voter's true intent.

Update 2:50 p.m.:  Local NBC political reporter Brahm Resnik said the judge in the Arizona ballots case is requesting briefs from all parties later this evening, with a hearing set for 2:00 PM local time, Friday.