By Sam Kmack, Arizona Center for Investigative Reporting
Friday, October 16
Phoenix, Ariz Less than a month away from the November election, Arizona’s voter registration deadline has changed twice in two weeks, putting into question whether the latest update will reach voters in time, and leaving the possibility that large numbers of ballots could be rejected.
Arizonans now have until midnight October 15 to register to vote.
While this may be one of the most confusing, contentious elections in recent memory, problems with voter registration aren’t new and have caused thousands of ballots to be thrown out in previous elections.
Nearly 14,000 ballots in Arizona’s 2016 presidential election were rejected by county officials because voters weren’t registered in the state or didn’t register by the state’s deadline. They represent 44% of the more than 31,000 ballots thrown out that year, according to an AZCIR analysis of rejected ballots.
With national attention now focused on Arizona as a key battleground in the presidential race, the state’s history of rejected ballots highlight gaps in voter education and inefficient election policy, which have contributed to Arizona ranking in the bottom third of states for election administration performance in each presidential election since 2008, according to MIT’s Election Performance Index.
But given the confusion among voters and election officials over registration deadlines, and policies that remain unchanged, experts say it’s difficult to know how many ballots could be rejected this year and what impact they might have on election outcomes. Adding to the challenges is a general unease about the integrity of the election process, and voting models in some counties that experts say can increase people’s chances of having their ballots rejected.
“There are people who are going to show up who are not going to see this news, who are now going to possibly receive provisional ballots that will be rejected because they’re not going to be registered in time,” said Matthew Weil, director of the Election Project at the Bipartisan Policy Center, a nonpartisan think tank based in Washington, D.C. “That’s the problem with making all of these changes and litigation in an election – getting that information to voters makes it almost impossible to keep voters current on what they’re allowed to do.”
The rejected ballots consist of early votes, which are cast by Arizonans such as those on the permanent early voter list, or who live abroad during election cycles. The number also includes provisional ballots, which are cast in person at polling places when a voter encounters a problem such as forgetting the necessary identification. Provisional ballots are later checked by election officials to confirm the voter’s information before being counted.
Election officials anticipate record-breaking turnout this year, including an influx of mail-in ballots and new voters, further raising the potential that an increase in rejected ballots could affect the election outcome from the top of the ticket down.
At stake is not only the nation’s top leadership position for the next four years, but also outcomes that could shift party majorities in Congress and the state legislature. Ballot initiatives could change the future of Arizona’s public education system and marijuana laws.
Court rulings change voter registration deadlines, confuse voters
Arizona is one of 30 states where officials set voter registration deadlines before the election takes place, meaning voters can’t register the day of the election and expect their vote to count.
More than 40% of all ballots rejected in 2016 were thrown out because the voters who cast them either weren’t registered or didn’t register by the state’s deadline. In 2012, there were 12,481 ballots rejected for this reason, representing 28% of all ballots thrown out by election officials that year, according to AZCIR’s analysis.
Arizona’s registration deadline has typically been 29 days before an election, but this year it was challenged in court because advocacy groups claimed they faced barriers registering voters in person as a result of COVID-related restrictions. A U.S. District judge agreed with the two groups, Mi Familia Vota and Arizona Coalition for Change, ordering that Arizona’s voter registration deadline be extended by 18 days.
“To say that COVID caused you that problem is totally out of whack. I’m not in favor of that, everybody knew the deadline, knew the cut-off point,” said U.S. Rep. Paul Gosar, a Republican who represents Ariona’s 4th District. “In fact, my own daughter missed that cutoff date, and if she didn’t feel the urgency to register, she doesn’t deserve to vote.”
Last week, the Republican National Committee and the National Republican Senatorial Committee filed an appeal that was later joined by Arizona Attorney General Mark Brnovich, asking the court to end the extension. The court agreed, saying that it overburdened election officials who had to count early ballots and register voters simultaneously, a concern shared by experts from both sides of the aisle.
On October 13, the U.S. 9th Circuit Court of Appeals reversed the lower court ruling that had extended the registration deadline. The extension now ends just 10 days after it had been implemented, but not before more than 25,000 voters registered, according to the Arizona Secretary of State.
“The problem is once you’ve extended and then you’ve cut it short again, there could be some voters who think they have more time to register and then unfortunately realize after the new deadline that they can’t,” said Raúl Macías, counsel for voting rights and elections at the Brennan Center for Justice, a bipartisan policy institute based in New York. “That’s what’s potentially at stake.”
“Discriminatory” policies could mean more rejected ballots in some Arizona counties
In another recent court decision that affects Arizona’s election policy, the 9th U.S. Circuit Court of Appeals ruled this January that the state’s practice of rejecting entire provisional ballots cast outside a voter’s precinct was discriminatory, and disproportionately impacted voters of color.
Nearly 4,200 provisional ballots cast by Arizonans in 2016 were rejected for this reason.
When someone casts a ballot out-of-precinct, the form they receive contains candidates or local ballot measures for which they are ineligible to vote. In some states, the portion of the ballot that the person is eligible to vote for will still count. In Arizona, the entire ballot is thrown out.
“This policy – it’s not the norm. It leads to a ton of disenfranchisement,” said Macías from the Brennan Center for Justice.
The 9th Circuit Court put its ruling on pause in February at the request of Arizona Attorney General Mark Brnovich, who later petitioned the U.S. Supreme Court to review the decision. In the petition, the state argued that its practice of rejecting entire outside-of-precinct votes protects against potential voter fraud, and the notion that it is discriminatory is unfounded.
On October 2 the U.S. Supreme Court agreed to hear the case, meaning it’s most likely that Arizona election officials will still be required to reject out-of-precinct ballots in November.
As of August 2020, about 71% of Arizona’s active voters were living in counties that have done away with precincts entirely, eliminating the possibility of provisional ballots getting rejected for being cast outside a voter’s precinct. Cochise, La Paz, Maricopa, Navajo, Yavapai and Yuma counties now use vote centers, which allow residents to vote at any location within their county.
Five other counties – Coconino, Gila, Graham, Greenlee, and Santa Cruz – will use a “hybrid” model. Voters will have assigned polling precincts, but some vote centers will also be available. If a voter goes to one of the available vote centers, their ballot will not be rejected as long as they live in the county. At precinct-based polling locations in these counties, ballots will still be rejected if they’re submitted by voters outside their assigned precinct.
Pima, Pinal, Apache, and Mohave County, which combined represent a quarter of Arizona’s active voters, will be strictly precinct-based. This means ballots cast outside a voter’s assigned precinct will be rejected. In the 2016 general election, these counties rejected 1,482 ballots for that reason.
For counties that lack widespread internet access and infrastructure such as Apache County, which contains parts of the Navajo Nation, vote centers are particularly difficult to establish because they require poll workers to have an internet connection. They must also have facilities large enough to fit thousands of voters.
“Vote centers would really work hand-in-hand in reducing Apache County’s provisionals,” said Bowen Udall, chief deputy recorder in Apache County. “If we could do that then I think we’d have a lot of happier voters.”
In 2016, a quarter of Apache County’s provisional ballots were rejected because voters cast ballots outside their precinct. County election officials told AZCIR that they’ve been trying to implement a vote center in their county for years, but it’s impossible because of a lack of internet access.
“A lot of people insist on voting [out of their precinct] so we give them a provisional and unfortunately it doesn’t count because they’re not in their precinct,” Udall said. “It’s a problem that I’ve been trying to solve for years – I try every election cycle to solve it – but we just don’t have the infrastructure yet.”
USPS recommends mailing ballots earlier to meet election night deadline
Over the past decade vote-by-mail has increased across Arizona, representing more than two-thirds of all ballots cast in 2016. Experts said the state’s vote-by-mail system is one of the most well-developed in the country and that Arizona is better equipped than many to deal with an election in the midst of a pandemic, when the rate of mail-in voting is expected to grow.
Despite assurance from state officials that election mail won’t be affected, federal funding cuts have caused nationwide concern over the United States Postal Service’s ability to deliver the ballots on time. In Arizona, that timing can make the difference between a ballot being counted or rejected.
Hundreds of early ballots mailed by voters in Arizona were rejected in 2016 because they didn’t arrive at the elections office by the 7 p.m. deadline on election night. In states such as California and Utah, ballots can be postmarked before or on November 3 and still be counted if they arrive after Election Day.
Macías, of the Brennan Center, said this policy is just one area where Arizona falls short. Most states with high rates of mail-in voting take extra steps such as accepting ballots that arrive after election day as long as they are postmarked before the election, he said.
In past Arizona elections, a ballot could be sent the Wednesday before Election Day. But according to a July letter sent to Arizona Secretary of State Katie Hobbs by USPS officials, the service can’t guarantee Arizona ballots sent on Wednesday will make the deadline. Arizona’s deadline was “incompatible with the Postal Service’s delivery standards,” the letter stated.
The USPS recommended that voters send early ballots by Tuesday, Oct. 27 – a day earlier than in past years. The service also recommends voters request early ballots no later than October 19, but “preferably long before.”
“Our mail-in ballot program is secure and despite what’s happening with the postal service, we are assured that there won’t be any impact on election mail, particularly ballots,” Hobbs said.
Gina Roberts, voter education director at Arizona’s Citizens Clean Election Commission, said that if voters are educated about key dates and their options for returning a mail-in ballot, the new deadlines will have a minimal impact on the number of ballots rejected.
Voters can fix mismatched signatures, but not unsigned ballots
In the 2016 election, data shows a downward trend in the overall number of early ballots rejected by election officials, decreasing by more than 4,300 between 2016 and 2012.
Secretary Hobbs and experts say this decrease is a result of Arizonans becoming more comfortable with voting by mail and represents a move in the right direction.
In Maricopa County, investments in voter education efforts and simplifying the vote by mail process reduced the number of unsigned ballots by half between the last two presidential elections, from 4,610 in 2012 to about 2,200 in 2016.
“One of the changes made just four years ago was putting the signature box that you sign for an early ballot affidavit on the same side as the thing that you lick to seal it. That sounds silly, but when you use a lick to seal your envelope, you’re rubbing your nose right across that signature box,” said Rey Valenzuela, election director for early voting and election services in Maricopa County.
According to Arizona law, voters who forget to sign their ballots won’t have their votes counted. In 2016, missing signatures accounted for 3,295 rejected ballots across the state.
But a new law passed in 2019, AZ Senate Bill 1054, could further reduce the number of rejected early ballots by giving voters a chance to fix other signature issues. The bill requires election officials to contact voters if their signature didn’t match what election officials had on file. Voters will have up to 5 p.m. on the fifth business day after the election to fix it.
In previous elections, there was no time period for voters to fix ballots with mismatched signatures, which accounted for 2,663 rejected ballots in 2016.
U.S. Rep. Paul Gosar said he doesn’t think the series of changes made to the voting process this year are necessary.
“How many rules do you have to defy? You have to follow instructions,” Gosar said. “If you make mistakes and your ballot is not counted, you’ll learn next time. Next time you’re not going to do it again.”