On Monday, Barber's lawyers filed suit in Federal District Court seeking to have 133 provisional ballots, not yet included in the unofficial vote count, counted.
The Arizona Republic reported last evening that a hearing is scheduled for 11 am this morning (November 26) on the suit.
McSally has a razor-thin lead of 161 votes, out of more than 219,000 cast in the 2nd District race. A recount is scheduled for after Dec. 1, but it will be delayed if Barber's legal challenge is heard by the courts.
The lawsuit seeks a temporary restraining order and a preliminary injunction to stop the state from certifying the results of the election on Dec. 1, less than a week away. The hearing is set for 11 a.m. Wednesday in Tucson in front of Judge Cindy K. Jorgenson.12News anchor Lin Sue Cooney said, in a video clip posted with the Republic story, "McSally has a 161 vote lead over Barber and even if all of the 133 voters chose the incumbent Congressman, McSally would still be slightly ahead."
Neither Cooney nor Rob O'Dell nor Matthew Hendley, got at one of the main underlying issues on why this lawsuit matters. O'Dell reported,
If all 133 votes the Barber campaign is putting forward were counted, the margin in the race could dwindle to 28 votes.
Rebecca Green, co-director of the Election Law Program at William & Mary Law School, said whoever is in the lead going into the recount has a huge advantage. But Green said cutting into the McSally's lead prior to a recount improves Barber's chances of winning. "They are trying to jockey to get as many votes as possible before the recount," Green said.This is true. But... what about that recount? If the rest of the votes were counted correctly, McSally wins by 28 votes, right? Well, maybe.
This is why election integrity activists successfully pushed for a hand count audit for every Arizona election. Arizona Revised Statutes, Title 16, Article 12 has seven sections specifying various aspects of recounts. Pertinently, ARS 16-663 B. states,
When the court orders a recount of votes which were cast and tabulated on electronic voting equipment, such recount shall be pursuant to section 16-664. On completion of the recount, and for legislative, statewide and federal candidate races only, the county chairmen of the political parties entitled to continued representation on the ballot or the chairman's designee shall select at random without the use of a computer five per cent of the precincts for the recounted race for a hand count, and if the results of that hand count when compared to the electronic tabulation of that same race are less than the designated margins calculated pursuant to section 16-602, the recount is complete and the electronic tabulation is the official result. If the hand count results in a difference that is equal to or greater than the designated margin for that race, the procedure established in section 16-602, subsections C, D, E and F applies.ARS 16-664 C. states,
The programs to be used in the recount of votes pursuant to this section shall differ from the programs prescribed by section 16-445 and used in the initial tabulation of the votes.My experience, observing early ballot tabulation at Maricopa County and participating in the hand count audit, suggests there are legitimate possibilities that 28 votes out of more than 200,000 could have been tabulated incorrectly for a couple of reasons.
Two significant possibilities include false undercounts and machines falsely reading an overvote for the race in question. False undercounts occur where a voter indicated a choice but may not have used a marking device (pen or pencil) that the machine would read.
I saw several false overvotes during the hand count. The most common reason for that was when the (early) voter used a Sharpie or other pen that bled through the ballot and was picked up as a mark for a race on the opposite side of the ballot. Out of 200,000+ ballots, there certainly could have been 28 of those. The machines would have not included those votes in the total because overvotes disqualify the ballot for that race. That's why the ballot, for example, for state representative says "vote for not more than two." If the machine thinks three marks were made, that race for that ballot (voter) doesn't get counted -- even though human eyes can tell whether the voter actually made too many marks for the race in question.
We also know that one of the two counties in which CD2 resides, Cochise, had major problems with its vote tabulation systems. The problems first presented during the August primary. They apparently didn't get fixed for the general election.
[Watch the documentary (online, for free) that Larry Moore referenced in the YouTube clip, at SnagFilms.]
Larry Moore heads a company that provides alternative software programming that, in theory anyway, could be brought in to conduct the machine recount.
Election integrity activist group AUDIT-AZ filed suit challenging Santa Cruz County for transparency problems this election season.
The Fatally Flawed Elections blog posted about the Barber/McSally recount situation a couple days ago. It's worth a read.
So, to me, the reason this lawsuit matters is because if Barber wins, the Republican state legislature might be motivated to plug the holes in election related statutes including those that preclude using the hand count totals for the final totals in automatic recounts.
UPDATE UPDATE UPDATE
The Associated Press reports today that US District Court Judge Cindy Jorgenson has denied Congressman Ron Barber's request to have 133 provisional votes, even though they were lawfully cast, counted.
Whether or not this decision will impact the race for Barber's seat in Congress is yet to be seen. However, these voters, who lawfully cast votes, do have a legitimate grievance because their votes are not going to be counted.