1

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3

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5

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Paul F. Eckstein (#001822)

Daniel C. Barr (#010149)
Kirstin T. Eidenbach (#027341)
D. Andrew Gaona (#028414)
Alexis E. Danneman (#030478)
PERKINS COIE t-rp
2901 Norlh Central Avenue, Suite 2000
Phoenix, Arizona 85012-2788
Telephone : 602.351.8000
Facsimile: 602.648.7 000
PEckstein@perkinscoie. com
DB arr@perkinscoie. com
KEidenbach@perkinscoi e. com
AGaona@perkinscoie. com
ADanneman@perkinscoie. com
DocketPHX@perkinscoie. com

r Int e rv e no r - D efe nda nl s

and Ron Barber for Congress

At t o r ney s fo
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n l] ar b e r

ARIZONA SUPERIOR COURT

t2
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Ro

PIMA CQLINTY
JENNIFER RAWSON, a qualified elector
and taxpayer of Pima County and Arizona
Congressional District 2,

Plaintiff,

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BRAD NELSON, in his official capacity of

Pima County Director of Elections,

No.2014-5865

IESPONSB OF INTERVENOR.
DEFENDANT RON BARBER AND RON
I}ARBBR FOR CONGRESS TO
PLAINTIFF'S AI'I'LICATION FOR
TEMPORAIIY IIESTRAINING ORDER

Defendants,

ROB BARBER; and RON BARBER FOR

CONGRESS,
IntervenorDefendants.
Intervenor-Defendants Ron Barber and Ron Barber

for

Congress (collectively, the

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"Campaign") hereby submit the following response

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temporary restraining order. Plaintil'f sirnply cannot satisfy ny of tl-re four "traditional equitable

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in opposition to Plaintiffs request for a

(l)

criteria" required to obtain this extraordinary relief, especially here whete such relief would:

interfere with the statutory duties and discretion of the Pima County Director of Elections, and (2)

more importantly, would improperly elevate what are, at most, technical requirements placed on

election day poll workers over the true "object of elections" under Arizona l1-((6 ascertain a

free expression of the

252-53, 12 P . 130, 732 (1557). As a result, and detailed further below, Plaintiff s request for a

TRO, and indeed, her request for special action relief in its entirety, must be denied.

will of the voters." Territory

Cnly.,2 ti2.248,

Factual Background

v. Bd. of Sup'rs of Mohave

At the heart of Plaintiffs

complaint and request for a TRO

is an extremely close

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Congressional election. At last check, the unofficial margin between Republican Martha McSally

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I Provisional ballot
and incumbent Democratic Congressman Ron Barber was 341 votes.

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verification by the Pima County Recorder (the "Recorder") has ended, and the Pima County

13

Director of Elections (the "Director") will begin counting those ballots (and others) today.

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On November 8, 2074, the Republican Party l}y'rartha Mcsally for Congress campaign

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("McSally") lodged a "challenge" with the Recorder requesting that she cease the process of

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verifying provisional ballots which bear the signature of the voter, but do not also have

11

signature of a poll worker on the provisional ballot envelope.2 The Campaign unclerstands that

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several hundred ballots may

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provisional ballot envelopes in most precincts, but most notably, Pima County precincts 53,57,

20

58,80 100,113,and216.

fall into this

category, and that the poll workers did not sign

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In a series of emails with Mcsally's counsel, the Recorder indicated that her oflice would

22

not stop the verification process as to this category of provisional ballots.3 The filing of the

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25
26

of

State's Office, Unofficial Election Results, available at

WebOl/
c
See E-mail from Eric Spencer to Pirna County Recorder F. Ann Roddguez, Nov. 9,
2014,9; 47 AM [attached hereto as Exhibit A l
.See E-mail from Deputy Pima County Recorder Chris Roads to Eric Spencer, Nov
9,201410:05 AM fsee Exhibit Al

rizona Secretary

complaint for special action and request for TRO in this case followed.

Argumcnt

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Just one day after voters all over Arizonawent to the polls, and when confronted with the

reality of another close election in Arizona's Second Congressional District, Martha McSally

issued a statement explaining that "while the democratic process can be slower than we want at

times, it's critical to make sure all Arizonans have their voices heard," and that her carnpaign

"intendfed] to make sure that every vote is counted."4 But the f,rling of this actiou (by McSally's

campaign counsel, no less) evidences that Plaintiff is among Mcsally's supporters who do not

agree. Plaintiff seeks to invalidate potentially several hundred on which poll workers, for

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whatever reason, did not sign provisional ballot envelopes. This, at best, is the very definition of

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a technical enor in the complicated election process, and

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only to punish voters, who otherwise complied with all election law and voting requirements, for

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a mistake they did not

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of a provisional ballot envelope by a poll worker is not a mandatory requirement irnposed by

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Arizona's comprehensive statutory scheme governing elections. As a result, Plaintiff s request is

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as

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I.

Plaintiffls requested relief would work

make. But more fundamentally, it is not an error at all because the signing

misguided as it is political, and should be denied.

PLAINTIFF CANNOT ESTAIILISH ANY OF THE FOUR CRITERIA FOR TI-IE

ENTRY OF A TEMPOIIARY RESTRAINING ORDER

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Plaintiff cannot demonstrate that he is entitled to a TRO that would prevent Pima County

20

from verifying and counting the ballots in question. A party seeking a TRO-like one seeking a

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preliminary injunction-must establish four "traditional equitable criteria":

1)

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A strong likelihood

that he

will

succeed at trial on the

merits;
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2)

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The possibility of irreparable injury to him not remediable

by dmages if the requested relief is not granted;

25
4

26

Bill

Hess , Slow

availqble at httu://www.

tng in tabulating CDS race, Siena Vista Flerald Q''lov. 6,2014),

d.com/ content/bill-hess/20 1 41111061391781

J-

3)
4)

A balance of hardships favors himself; and

Public policy favors the injunction.

Shoenv. Shoen,16l riz.58, 63, 804 P.2d 787,792 (Ct. App. 1990) (citations omitted). A court

applying this standard may apply a "sliding scale," under which "the moving pafty may establish

either 1) probable success on the merits and the possibility of irreparable injury; or 2) the

presence

Smithv. Ariz. Citizens Clean Elections Comm'n,212 Ari2.407,410-11 T 10, l32P3d lIB7,

1190-91 (2006). Whatever the standard, Plaintiff cannot prevail.

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of serious questions and [that] 'the balance of hardships tip[s] sharply"' in its favor.

A.

Plaintiff Will Not Succeed on the Merits.

Plaintiff cannot (and will not) succeed at a trial on the merits of this action because his
claim will fail as a matter of law for at least four separate reasons.

First, it is clear from the plain language of the controlling statute governing the handling,

that: (1) the signature of a poll worker on a

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processing, and counting of provisional ballots

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provisional ballot envelope is not required, and (2) even

15

would not work to invalidate a voter's otherwise-clear expression of her intent. See Bither

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Country Mut. Ins. Co.,226 Ariz. 198, 200 T 8,245 P.3d 883, 885 (App. 2010) ("The best

1l

indication of legislative intent is the plain language of the statute.") (citation omitted). Indeed, all

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that the slatute contemplates is that the provisional ballot, once voted, be placed into an envelope

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and then verified by election officials through a specilc procedure:

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if

a signature were required, its absence

On completion of the hllot, the electiott officil sltall remove tlte

bllot stub, sltll place the bullot in a provisionul ballot envelope
and shall deposit the envelope in the ballot box. Within ten
calendar days after a general election that includes an election for a
federal office and within five business days after any other election
or no later than the time at which challenged early voting ballots are
resolved, the signature shall be compared to the precinct signature
roster of the former precinct where the voter was registered. If the
voter's name is not signed on the roster and if there is no indication
that the voter voted an early ballot, the provisional ballot envelope
shall be opened and the ballot sliall be counted. If there is
information showing the person did vote, the provisional ballot
shall remain unopened and shall not be counted. When provisional

-4-

v.

ballots are conf,rrmed for counting, the county recorder shall use the
information supplied on the provisional ballot envelope to correct
the address record ofthe voter.

A.R.S. $ 16-584(D) (emphasis added). And, in the absence of eitl-rer a statutory requirement or

statutory disqualification of a ballot on these grounds, it is not the role of the judiciary to create

them.

reluctant to deprive a successful candidate of the fruits of an election unless such penalty is

speciJiclly setforth by statute.") (emphasis added).

Cf

Fish v. Redeker,2 Ariz. App.602,606,411 P.zd 40,44 (1966) ("This Court

Second, Plaintiff points to the following language in the Arizona Secretary

is

of State's

Elections Manual (the "Manual"),s which describes the process of handling provisional ballots:

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"'lhe voter and the election official sign the provisional ballot form" See Manual aI

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Although the Manual does contain this language, it is not cast in a mandatory form. But even if

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it were, it would be trumped by a later provision of the Manual, which provides that provisional

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ballots "shttll be counteil'if: (1) "the registration of the voter is verified and the voter is eligible

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to vote in the precinct, and' (2) "the voter's signature does not appear on any on any other

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signature roster for that election,

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election."

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envelope is sufficient if the voter signs it and if the signature matches the signature on the voter's

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registration

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it is not), it

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particularly considering Arizona's policy under which votes are counted absent a substantive

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irregularity. At worst, there is an internal inconsistency between two provisions of the Manual

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and the authorizing statute, which must be resolved in favor of the statute and the provision of the

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Manual that is virtually identical to the statute.

,Se

152.

and' (3) "there is no record that the voter voted early for that

Manual at 185 (emphasis added). And, the affidavit on the provisional ballot

. Id. at 162. Thus, even if the language relied on by Plaintiff were mandatory
cannot supersede the statute (A.R.S.

(which

16-584) and the Manual at page 185,

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As a result, the signature of a poll worker (or lack thereof) has notlting to do witli the

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validity of a provisional ballot when the scheme prescribed by the Manual is considered in its

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Se e

http

ll

www, azsos. gov/election/Electronic

-5-

Voting

ystern/manual.

pdf

entirety (as it must). Grant v. Bd. of Regents of Universities & State Colleges of Ariz., 133 Ariz.

527, 529, 652 P.2d 1374, 1376 (I9SZ) ("statutory construction requires that the provisions of

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statute be read and construed in context with the related provisions and in light of its place in the

statutory scheme"). Above all, the Manual says nothing about the disqualification of provisional

ballots that lack the signature of a poll worker on the envelope, which is hardly surprising given

that

,7

technical compliance with the Manual-"is the question of primary importance." White v. De

Arman, 89 Ariz. 327, 328, 362 P.2d 122, 122 (1961) (citation omitted)

"'in

counting the ballots, the determination of the intent of the vs[s1"-11t a poll worker's

Third, to the extent that Arizona law requires that poll workers sign provisional ballot

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envelopes, their failure to do so is a technicality that cannot work to deprive a voter of the

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opportunity to make their voice heard, and the candidates for whom they voted the benefit of their

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support. Territory v. Bd. of Sup'rs of Mohave Cnty.,2 Ariz.248,252-53, 12P.730,732 (1887)

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("It is the object of elections to ascertain a free expression of the will of the voters, and no mere

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irregularity can be considered, unless it be shown that the result has been affected by

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irregularity."); Findley v. Sorenson,35 Ari2.265,269,276 P. 843, 844 (1929) ("honest mistakes

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or mere omissions on the part of the election offrcers, or irregularities in directory matters, even

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though gross,

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render it uncedain.").

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if not fraudulent, will not void

such

an election, unless they affect the result, or at least

Importantly, the most recent Atizona authority on point makes clear that votes and

will

be voided only in the case of "substantive irregulaties," hardly the case presented

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elections

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here. Miller v. Picacho Peak School District, 179 Ariz. 178,877 P.2d277 (1994). In Miller,

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voters in a school district contested the results of a budget override election because school

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district employees had been "closely involved with the distribution and collection of

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ballots,"

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[absentee]

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employees had violated the express terms of a "non-technical statute," that the absentee ballots in

in violation of A.R.S.

absentee

16-542(B) which required "that only electors may possess

ballots." Id. at 178, 877 P.2d at 277

. The Supreme Courl held that the school district

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question affected the outcome of the election, and that as a result, the election had to be set aside,

Id. at 180, 817 P.2d at 219. The Court discussed its holding in detail as follows:

This is not case of nrcre tecltncal violation or one of

dotting one's "i's" und crossittg one's "t's.' At hrst blush,
mailing versus hand delivery may seem unimportant. But in the
context of absentee voting, it is very important. Under the Arizona
Constitution, voting is to be by secret ballot. Ariz. Const. art. VII,
$ i. Section 16-542(B) advances this constitutional goal by setting
forlh procedural safeguards to prevent undue influence, fi'aud,
ballot tampering, and voter intimidation. Here, the dangers were
the very ones the statute was designed to prevent, District
employees with a pecuniary interest in the override's passage
delivered ballots to electors whom they knew. Although these
electors did not ask for ballots, school employees urged them to
vote and even encouraged them to vote for the override. District
employees went to the homes of the electors and stood beside them
as they voted. Even if the elector voted his or her conscience, the
ballots still would never have been cast but for the procedures
adopted by the district. Thus, testimony that the vote reflected the
voter's intent is irrelevant. These tactics achieved the desired
result-they turned the election around. Tltese were substantive

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8

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irregulariti.es.

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Id. (emphases added). And explaining the command of earlier Arizona cases, the Court explained

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fE]lection statutes are mandatory, not 'advisory,' or else they would
not be law at all. If a statute expressly provides that non-compliance
invalidates the vote, then the vote is invalid. If the statute does not
hve such provision, non-complisnce nxfly or may not invulidate
the vote depending on its effect. In the context of this case, "affect
the result, or at least render it uncertaifl,". . , means bllots
procured in violation of non-technical sttute in sufficient
numbers to alter the outcome of the election.

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Id. at 178, 180, 877 P .2d at 279 (emphases added).

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Here, the Manual's signature statement is at best a technical adrninistrative suggestion,

21

and neither A.R.S. $ 16-584(D) nor the Manual provide for the invalidation of provisional ballots

22

not signed by a poll worker. This is hardly the sort of "substantive irregularit[y]" Miller

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contemplated, nor does

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valid ballot.

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it rise to a level that would require the disqualification of an otherwise-

Finalbt, even if application of the Manual's signature statement would lead to

the

invalidation of the provisional ballots at issue here (which it does not and cannot), the Manual

would be void as a matter of administrative law. Though the Manual is a binding adrninistrative

rule, A.R.S . 16-452, but like all other rules, it "should not be inconsistent with or contrary to the

provisions of a statute, particularly the statute it seeks to effectuate." Ferguson v. Arizona Dep't

of Econ. Sec., 722 Ariz. 290,292, 594 P.2d 544,546 (App. 1979). To construe this section of the

Manual as requiring the disqualification of ballots based on an honest and innocent poll worker

error when no disqualification mandate is set forth in the authorizing statute (A.R.S. $ l6-584(D))

would be inconsistent with the statutory scheme, and undermine a strong Arizona policy of

ensuring that elections "ascertain a free expression of the

252-53, 12P. at732; see /so Discussion at p. 5, supr

will of the voters." Territory,2 Ariz.

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B.

ll

Beyond Plaintiffls inability to demonstrate that he

Plaintiff Wilt Not Suffer Irreparable Harm if Relief

will

at

is Not Granted.

succeed on the rnerits at trial, he

If

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also cannot establish that he would sustain irreparable harm absent the entry of a TRO.

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provisional ballots at issue here are counted and ultimately affect the outcome of the election,

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Plaintiff clearly has a statutory remedy through an election contest brought pursuant to A.R.S.

15

16-672. That statute clearly provides that any elector may contest the election of any person

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"declared elected to a state offrce" for, among other things, the counting of "illegal votes." A.R.S,

t7

16-672(^)(4). That is precisely the procedure followed in Mille.

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plovided Plaintiff with an adequate remedy at law that is not yet ripe, he

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irreparable injury if he does not obtain its requested TRO.

the

Because the legislature has

will not sustain

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C.

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In weighing the balance of hardships, there is no doubt thal a TRO preventing elections

22

officials from oounting the disputed provisional ballots would harm the Carnpaign and those who

23

potentially cast ballots in Congressman Barber's favor. Among other things, granting Plaintiff his

24

requested relief rnay ultimately deny the Campaign its right to an automatic recount. This could

25

occur

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candidates to greater than one-tenth of one percent, the trigger for such a recount under Arizona

if

The Balance of l{ardships Favors the Non-Moving Parfy.

not counting the disputed provisional ballots would bring the spread between

-8-

the

law.

would not be adversely affected by the denial of its requested TRO.

,See

A.R.S. $ 16-661. In contrast, the Plaintiff and his efforts to invalidate those ballots

D.

Above all, the public interest does not favor punishing voters for a mistake they did not

make, or casting aside several hundred otherwise-valid provisional ballots as a result of an

invented technicality that has no basis in Arizona

counted consistent with the constitutional significance of the act of participation in the political

process. See Burdiclc v. Takushi, 504 U.S. 428, 433

fundamental significance under our constitutional structure.") (citation and internal quotation

The Public Interest Favors the Counting of All Ballots.

law. To the contrary,

(It

l,17

those ballots must le

is beyond cavil that voting is of the most

(1964) ("No right is more precious in a ee

10

marks omitted); Wesberry v. Sanders,376 U.S.

tl

country than that of having a voice in the election of those who make the laws under which,

I2

good citizens, we must

13

undermined."). The Court should not interfere with the process of counting all valid ballots and

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permitting elections officials to fulfill their statutory duties to perform a full canvass of the votes

l5

that can later be certified by the Board of Supervisors.

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l8

live. Other rights, even the most basic, are illusory if

as

the right to vote is

Conclusion

For the foregoing reasons, the Campaign respectfully request that the Court
Plaintifls

request for a temporary restraining order in this matter.

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deny

Dated: November 10,2014

PEIIKINS COIE

nt,

By:

Paul F. Eckstein
Daniel C. Barr
Kirstin T. Eidenbach
D. Andrew Gaona
Alexis E. Danneman
2901 Norlh Central Avenue, Suite 2000
Phoenix, Arizona 85012-27 88

4
5

for Intervenor- Defendant Ron

Barberfor Congress

Attorneys

I
9

ORIGINAL of the foregoing sent via facsimile

This 1Oth day of November,2074,to'.

10
11

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Office of the Clerk of the Superior Court

Pima County
i l0 V/. Congress Street
Tucson, A285701-1317
Fax: (520) 798-3531

13

COPY of the foregoing sent via facsimile that same day to

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20

2t
22
23

24
25

Judge James E. Marner

Pima County Superior Courl

Fax: (520) ?AV

- q()S<

COPY of the foregoing sent via U.S. Mail and e-mail

that same day to:

Eric Spencer
Brett Johnson
Snell & Wilmer LLP
One Arizona Center
Phoenix, Arizona 8 5 00 4 -2202
spencer@swlaw.com
bwjohnson@swlaw.com
Attorney /'or P lainti./f

Daniel Jurkowitz
Pima County Attorney's Offtce Civil Div
32 N. Stone #2100
fucson, AZ 85701
Daniel. Jurk owitz@pcao.pima. gov
At torney .for County Defendants

26

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LEGALI24090727.2

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EXHIBIT A

Gaona, D. Andrew (Perkins Coie)

F. Ann Rodriguez <fann@recorder.pima.gov>
Sunday, November 09,2014 1l-:45 AM
Spencer, Eric; Chris J Roads; brad.nelson@pima.gov; Barr, Daniel (Perkins Coie); Gaona,

From:
Sent:
To:

D.

Andrew (Perkins Coie)

Recorder-admin; Mary.Martinson@pima.gov; Daniel.Jurkowitz@pcao.pima'gov;

Tweeten, Carlie; Jenkins, Amanda; jkaucher@gustlaw.com; Chris Straub
RE: Challenge to Provisional Ballot Forms With Missing Election Official Signature

Cc

Subject:

Eric,
I believe we have already answered you on this

matterfully. I believe the emails crossed that Mr. Roads sent and then

we received this email.

We are proceeding as planned and explained in other emails
I have already given the

attorneys that are here representing both candidates the below report verbally on our

progress for Provisional Ballots at approximately 11:30 a.m,

Completed first checks done 9,254

Completed 2nd checl<s done and transmitted to Elections Department 5,31"2.
The 5,312 includes 69 conditional provisional ballots that we treated as regular provisional ballots
So far there are a

total of 693 ballots that are classified

as Non Verified but some of these still need to go through the

2nd process checking.

We will be done with first check today

Ann Rodriguez
Pima County Recorder
F.

From: Spencer, Eric Imailto:espencer@swlaw,com]

Sent: Sunday, November 9,2014 10:35 AM
To: Chris J Roads; F. Ann Rodriguez; brad,nelson@pima.gov
Cc: Recorder-admin; Mary.Martinson@pima.gov; Daniel.Jurkowitz@pcao.pima.gov; Tweeten, Carlie; Jenkins, Amanda;
jkaucher@gustlaw.com
Subject: RE: Challenge to Provisional Ballot Forms With Missing Election Official Signature

Mr. Roads,
Furthermore, if the recorder's objection is based on a lack of personnel to conductthe inspection, the campaign
requests that addtional political party observers, from both political parties, be allowed to assist in the
review/collection efforts (strictly for this limited purpose) in order to facilitate a more efficient review. I am willing to
coordinate with Mr. Ganoa regarding the same.
Very truly yours,
Eric Spencer

Fric l-1. Spencer

Snell & Wilmer L.L.P.
One Arizona Center
Phoenix, Arizona B5OO4-2202

Office: 602.382.6573
espencer@swlaw.com www.swlaw.com/eric_spencer

$n:li

,\iilntut

Denver, Las Vegas, Los Angeles, Los Cabos, Orange County, Phoenix, Reno, Salt Lake City, Tucson

From: Spencer, Eric

Sentr Sunday, November 09,2014 10:21 AM
To: 'Chris J Roads'; F. Ann Rodriguez; brad.nelson@pima.gov
Cc: Recorder-admin; Marv.Martinson@pima.gov; Daniel.Jurkowitz@pcao.nima.gov; Tweeten, Carlie; Jenkins, Amanda;
jkaucher@gustlaw.conr
Subject: RE: Challenge to Provisional Ballot Forms With Missing Election Official Signature

Importance:

High

Mr. Roads,
Thank you for your response. However, I do not believe that your response directly addressed the issues raised in our
cha llenge.
First, I would like to clarify the response time horizon. The campaign merely asked for confirmation within 30 minutes
that the recorder's office and elections department intended to implement the requested protective measures. The
campaign certainly did not expect the identification, collection and embargo process to be completed within 30 minutes
Second, the campaign dd not request that a// provisional ballot processng cease altogether, s your response appears
to assume. With respect to the recorder's office, the campaign requested:

1.
2.

That any/ulure provisional ballot found with a missing signature be rejected as unverified, and set aside pending
a legal review. This universe could end up being quite small.
That the recorder's office, n conjunction with political party observers, conduct a review of previously-verified
provisional ballots before those ballots are transmitted to the elections department.

This strikes me as a very reasonable and limited request that will not impede your office's statutory processing
deadlines. Once the ballots in question are segregated, which again - could be a quite limited universe - the parties can
make a final legal determination.
To confirm, the campaign is not requesting

thatthe recorder's office cease processingvalid provisional ballots.

ln light of these clarifications, and in order to preclude the parties from having to unnecessarily seek special action relief
in Superior Court, please confirm whether the recorder's will implement these targeted protectve measures,,
Very truly yours,
Eric Spencer
Erc H. Spencer
2

Snell & Wilmer L.L.P.

One Arizona Center

Phoenix, Arizona 85004-2202

Office: 602.382.6573
espencer@swlaw.com www.swlaw.com/eric-spencer

Snrll

\ilrnt

Denver, Las Vegas, Los Angeles, Los Cabos, Orange County, Phoenix, Reno, Salt Lake City, Tucson

From: Chris J Roads l-mailto:Chris.Roa

l
Sent: Sunday, November 09, 2014 10:05 AM
To: Spencer, Eric; F, Ann Rodriguez; brad.nelson@pima.gov
Cc: Recorder-admin; Mary,Martinson@pima,gov; Daniel,Jurkowitz@pcao.pima.qov; Tweeten, Carlie; Jenkins, Amanda;
ikaucher@gustlaw.com
Subject: RE: Challenge to Provisional Ballot Forms With Missing Election Official Signature

Mr. Spencer,
ln response to your challenge, the Pima County Recorder's Office will not stop processing the provisional

ballots. Whetherornotthepoll workersignedtheprovisional isclearlyidentifiablefromasmpleexaminationofthe

provisional ballot form whether or not the provisional is processed by the Recorder's Office. Therefore our processing
has no bearing as to your challenge. ln other words, the fact that we processed the provisional form will not impact
your abilityto proceed with your challenge. The Recorder's Office is under a statutory deadline to complete processing
the provisional ballots and we will continue to proceed toward meeting that deadline.
Please note that your extremely short deadlines for responses are unreasonable. Under Arizona law we have a
reasonable time to respond to public records requests and other matters. A deadline of less than 30 minutes is far less

than reasonable.
Both candidates have attorneys on site in our office observing our processes and tracking the work we are doing
Chris Roads
Chief Deputy Recorder/Registrar of Voters
Pima County Recorder's Office
From : Spencer, Eric Imailto: espencer@swlaw.com]
Sent: Sunday, November 9,20L4 9:47 AM
To: F. Ann Rodriguez; brad.nefson@rpima.qov

Cc: Recorder-admin; Marv.Martinson@pima,gov; Daniel.Jurkowitz@rpcao.pima.qov; Tweeten, Carlie; Jenkins, Amanda;

tkaucher@gustlaw.com
Subject: Challenge to Provisional Ballot Forms With Missing Election Official Signature

Importance:

High

Ms. Rodriguez and Mr. Nelson,

The Republican Party/McSally for Congress campaign (collectively "the campaign") formally challenges the validity of all
provisional ballots that have a provisional ballot form with a missing election official signature.
3

Page 152 of the Secretary of State's Election Procedures Manual states that, priorto voting a provisional ballot: "An
election official or voter completes a provisional ballot form. The voter and the election official sien the provisional

ballot form."
After voting the ballot, "[t]he voter will return the sealed envelope to the election official, who will verify the envelope
properly filled out, signed and sealed." /d.

Accordingly, the campaign respectfully requests the following immediate relief:

a

The recorder's office instruct staff to not verify any provisional ballots with a missing election official signature
on the provisional ballot form;
The recorder's office cease transmitting any prevously-verified provisional ballots to the elections department,
pending a review of the provisional ballot forms for missing election official signatures;
The elections department cease processing any provisional ballots ortransmtting any provisional ballots for
counting, pending a review of the provisional ballot forms for missing election official signatures; and
The recorder's office and elections department collect and embargo any provisional ballots that contain a
provisional ballot form with missing election official signatures, pending a final legal review and determination in
conjunction with the County Attorney's office.

Given the exigency of ths matter, please confirm by 1-0:L5 a.m. that the recorder's office and elections department will
immediately implement these prophylactic procedures.
Very truly yours,
Eric Spencer
Eric H. Spencer

Snell & Wilmer L.L.P.

One Arizona Center
Phoenix, Arizona 85004-2202

Office: 602.382.6573
espencer@swlaw.com www.swlaw.com/eric-spencer

tnsll c\Siilnrr
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