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Judge dismisses last election-related case pending in Arizona

  • November 21, 2020

now-defunct suit against the county over the use of Sharpies on Election Day, and Donovan Drobina. 

Both went to vote in person in Maricopa County on Election Day. 

Aguilera alleges that when she and her husband attempted to cast their ballots, the tabulator did not display any confirmation that her ballot had been accepted, as it had for her husband’s ballot. She claims she requested a new ballot, but poll workers refused.

Aguilera testified Friday that a poll worker told her the ballot was “in the box” and would be counted.

Still, she was concerned her ballot hadn’t been counted and that the county’s election website did not indicate she had voted, although it showed her husband’s had done so.

Drobina, for his part, testified that a tabulator rejected his ballot when he tried to insert it at his vote center on Election Day. After another attempt, a poll worker suggested he put it into another slot. Ballots deposited in that slot are counted individually by election officials if the tabulating machines cannot process them.

But Alexander Kolodin, the lawyer representing Drobina and Aguilera, argued that the ballot should not have been reviewed by election officials, contending that state law requires the machines — when operated properly — to “record correctly and count accurately every vote cast.”

Mahoney questioned Kolodin’s interpretation that the law guarantees every voter some sort of right to have the ballot counted mechanically, noting the state law and  election procedures lay out detailed processes for counting ballots by hand when ballots cannot be read by a machine.

And lawyers for the county argued that allowing Aguilera to cast a new ballot would have amounted to letting her vote twice.

While Aguilera said she did not see or hear a message from the tabulator indicating her ballot was counted, maybe she was mistaken and simply missed it, said Deputy County Attorney Emily Craiger.

Similarly, poll workers might have marked her as not having voted when she sought a new ballot, Craiger added.

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“We can acknowledge that perhaps mistakes were made. But the mistake that was not made was not letting Ms. Aguilera vote twice,” Craiger said.

Besides, Craiger noted, voters cannot cast a ballot after 7 p.m. on Election Day unless they were standing in line at a polling place.

The lawsuit also argued that the general public should be allowed to attend in person when election officials count ballots individually that could not be read by a machine.

Lawyers for the county pointed out that the public can watch election officials at work online — something Aguilera and Drobina said they had not attempted —- because public attendance is limited because of security and health concerns.

With the conservative Public Interest Legal Foundation signed on to the case, though, the trial seemed as much an effort to put out various claims about the election process.

Lawyers for the plaintiffs called one poll worker as a witness who estimated most voters at the vote center where he worked on Election Day had issues with tabulators reading their ballots.

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Follow Andrew Oxford and Maria Polleta on Twitter @andrewboxford and @mpolletta.

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