Saying it would create electoral chaos, attorneys for state and county election officials told federal appellate judges late Tuesday they should not order them to find -- and count -- the ballots of people who voted last week but were not legally registered.
Assistant Attorney General Carrie Brennan, coordinating the court filing, said the request by the Mexican American Legal Defense and Educational Fund would require election officials to sort through more than 80,000 "provisional'' ballots to find only those which were cast by those not on voter registration rolls, versus some other reason like not providing identification at the polls. Then they would have to compile and compare that to a list of everyone who's voter registration request was rejected for failing to provide proof of citizenship.
Brennan said there is no way that can be done and still meet Friday's deadline to finish counting all the ballots and report the final returns.
Brennan said any harm to those who should have been allowed to register without providing citizenship proof -- a legal point she is not conceding -- far outweighs the harm to Arizona's electoral process.
Arizona voters approved a requirement in 2004 that anyone seeking to register to vote must provide proof of citizenship. But the appellate court, in a 2-1 ruling a week before the election, said federal law permits election officials only to require that would-be voters swear to their citizenship, with no ability to actually demand proof.
Secretary of State Ken Bennett said the judges got it wrong and he intends to appeal.
But MALDEF attorney Nina Perales said that, in the meantime, the ruling is legal and the state should be forced to count the votes of those whose registrations were denied but who showed up at the polls anyway. There, they were given "provisional'' ballots because their names were not on the rolls.
Brennan said the sheer numbers make what MALDEF wants impossible.
She said there were about 84,000 provisional ballots cast. Brennan said, though, nothing on any of the ballots identifies why they were set aside, whether due to being unregistered or some other reason like voter ID at the polls.
Brennan also said there is no reason any of this should be necessary. She said the law requiring those seeking to register to produce proof of citizenship has been on the books and known for five years.
"Although their votes will not count in this election, these people could have avoided that result by complying with Arizona law and properly registering to vote by the voter registration deadline,'' Brennan wrote, a deadline that passed on Oct. 4.
No one is sure how many votes are at stake. Perales said she knows for sure of only two Pima County residents who voted despite the fact their registrations were rejected for failing to provide proof of citizenship.
The latest numbers Tuesday night show Proposition 112, to shorten the time available to file initiative petitions, was ahead by just 1,767 votes out of more than 1.5 million case.
Proposition 110, by contrast, was losing by fewer than 3,000 votes. That measure would allow the state to trade some of its lands to the federal government if the result would be to preserve open space around military bases.
And Proposition 203 to allow doctors to recommend marijuana to patients was 3,169 votes short of approval.
As of late Tuesday, the uncounted tally included 59,000 ballots given "provisional'' status for one reason or another, and 30,000 yet-to-be-tabulated early ballots.