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Legally Speaking: Maricopa County ballot lawsuit could have merit

(AP Photo/Matt York)

Due to a recent lawsuit filed in Maricopa County, we may have to wait even longer to find out who actually won what election.

The Donald J. Trump for President Committee, the RNC and the Arizona Republican Party have made good on their word and have filed a lawsuit in Maricopa County claiming legal ballots were not counted. The plaintiffs are asking the court to order Maricopa County to review and adjudicate all ballots that were cast by overriding the machine’s rejection of the ballots and hold off on the certification of the results of the election until this is done. It is the “Green Button” controversy.

On Election Day, Maricopa County voters showed up in person to voting centers and submitted their completed ballot to electronic tabulation machines. According to the complaint, these tabulation machine models had never been used in any Maricopa County election prior to 2020.

The heart of the lawsuit comes down to what happened when a voter would attempt to feed their ballot into the machine. “After marking their ballots, voters deposit them into the tabulation device. If the tabulator detects an apparent defect or irregularity on the face of the ballot, it will display an alert and eject the ballot.”

The complaint explains the proper procedure when this happens is “the voter may obtain and cast a new ballot, and the original ballot is deemed ‘spoiled.’ Alternatively, if the voter chooses to cast the original ballot notwithstanding the apparent defect or irregularity, the ballot must be physically deposited in a drawer within the tabulation device. Those ballots are then later subjected to further review and adjudication at the counting center.”

The plaintiffs argue the proper procedure, as explained above, was not followed in many instances. Allegedly, the poll workers would either instruct voters to press a green button, or the poll workers would do it themselves. By pressing the green button the machine is forced to physically accept the ballot but “the voter’s intended elections in the affected candidate races or ballot proposition contests will not be tabulated, even if the voter’s intent count be discerned by a visual review of the ballot.”

Bottom line, sometimes the machine would signal there was a defect or a problem and instead of setting the ballot aside to visually review later, the poll workers would instruct the pressing of the green button without knowing or realizing it would result in the ballot being physically accepted but the contents of the ballot would not.

According to the complaint, “ink splotches, stray markings, or inadvertent voter errors can cause the tabulator to register an “overvote” even though a visual inspection of the ballot would clarify this. An overvote occurs when the machine believes there are too many selections in one of the races. For example, if a voter selected both Trump and Biden then it would be an “overvote.”

If the events are what the complaint alleges, and there is no reason yet to believe they are not, then there is a strong basis to bring this lawsuit. Proper procedure must be followed for an election to be legal. Failure to do so violates both Arizona and Federal law.

Prior to Election Day, Maricopa County Superior Court created a path for all election-related lawsuits to follow. The court explained these cases would be expedited due to the importance of the issues involved. I predict we will likely see a quick response from the defendants and a court date scheduled in the immediate near future.

Will this lawsuit matter? Will if affect this election? It really depends on your point of view. If the defendants are able to discern what ballots were affected by the green button, could then pull them to determine if any mistakes were made, and then correct them, then some races could be affected. You might believe this is the most important consideration.

On the other hand, some might believe the greater good is the most important consideration in that even if the current races wouldn’t be materially impacted, correcting a procedural issue for the next election could be of upmost importance.

#LegallySpeaking, the court will likely set a status conference or a hearing within the week. All sides will need to appear and explain why the canvass and certification of the returns should either go forward or should be paused until this issue is resolved. Based on relevant timetables, there is time to wait on the certification until this issue is cleared up. That being said, all parties will need to work quickly to ensure the election results are in fact, legal.

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