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Pinal County voters who show up to vote at the wrong polling place on Election Day will not be provided a way to vote the correct ballot at that location, despite a new state rule, under an Arizona Supreme Court ruling.
In an emergency ruling issued Friday, the court determined it is too late to force the county to follow the rule, which Secretary of State Adrian Fontes created in December 2023. It requires Arizona counties that assign voters to a specific polling place make it possible for voters to cast the correct ballot, even if they go to a site other than the one to which they’ve been assigned.
Chief Justice Ann Scott Timmer wrote that the Supreme Court would uphold the lower court decision, which said that requiring the county to follow the rule now would create “unacceptable risk of chaos, uncertainty, and confusion.”
“Indeed, early voting has already begun,” Timmer wrote.
Fontes’ office had filed suit to force the county to comply in time for the Nov. 5 election. Instead, Pinal County will be able to continue its practice of telling voters to go to the correct location, or to cast a provisional ballot that will likely be rejected. Arizona law requires county officials to reject ballots if the voter casts a ballot style that’s not for their precinct.
The ruling puts Pinal County’s voters at a disadvantage, because all other counties in the state are either following the rule or using a different voting model where voters are not assigned a polling place and can access the correct ballot at any location in their county.
Based on past patterns, it’s likely that a few hundred of Pinal County’s voters will vote at the wrong location on Nov. 5 and will have their ballots rejected. That happened to 274 voters in November 2020 and 235 in November 2022.
In court, both sides questioned why the other didn’t initiate their challenges earlier. Fontes’ office said that if Pinal County wanted to challenge the rule, it could have filed or joined a related lawsuit any time after December 2023. The Pinal County recorder’s office questioned why the secretary’s office didn’t file its suit earlier, when it knew the county hadn’t followed the rule starting with the presidential preference election in March.
The Secretary of State’s Office fears this unequal playing field for voters may become the subject of post-election legal challenges.
“If we are in an election contest and there are votes that were counted in all 14 other counties, but they weren’t counted in Pinal County, even though they could have been or should have been, that is going to cause major, major problems in Arizona elections,” Assistant Attorney General Kara Karlson, the lawyer representing Fontes’ office, said in a hearing earlier this month. “And how can we avoid that? The voter is the one that is going to pay the penalty here.”
Fontes’ office filed the lawsuit against Pinal County in late September after learning the county didn’t intend to follow the rule in the upcoming election.
On Oct. 4, the trial court issued a mixed ruling, finding that the county didn’t need to follow the rule because it was too close to the election to change election procedures. But the court also found that the rule was valid and did not violate state law, as Pinal County had claimed. Fontes’ office appealed the ruling on an emergency basis.
The Supreme Court did not consider whether the rule conflicted with state law. It considered the closeness to Election Day the most important factor, Timmer wrote.
State law leaves it up to county officials to decide if their county will operate voting using a precinct model, which restricts voters to voting at an assigned location, or a vote center model, which allows them to vote anywhere.
The Pinal County Recorder’s Office argued that in effect, the new rule illegally forces counties into a vote center model.
The county’s supervisors have been reluctant to adopt a vote center model for a number of reasons, including concerns about connecting voter rolls to the internet.
The new rule requires counties on the precinct model to set up their accessible voting devices — large computers that are mostly used by voters with disabilities or language barriers — to contain every ballot style, for every precinct. If a voter shows up to the wrong location, the poll workers must permit the voter to use that device to cast the correct ballot style for their precinct.
Pinal County Recorder Dana Lewis told the judge in an Oct. 1 filing that the county has typically reserved the accessible devices for the voters they are intended to help — voters who are blind or visually impaired — to ensure that they are available for them.
She wrote in the filing that the county had already programmed its accessible devices and trained poll workers on what to do when a voter shows up at the wrong location. She wrote that it would take the county 30 to 45 minutes to reconfigure each of 124 accessible voting devices.
“Even if technically possible,” Lewis wrote, “it would be extremely burdensome from an administrative standpoint as workers will have to be diverted from working on other critical tasks in the run up to Election Day to instead focus their efforts on accomplishing this last-minute task.” The county would then have needed to then retest the machines.
Apache County is the only other county operating on a precinct model, and has told Fontes’ office that it is following the new rule, according to a spokesperson for the county recorder’s office.
Jen Fifield is a reporter for Votebeat based in Arizona. Contact Jen at jfifield@votebeat.org.
