By Staff Reporter |

Maricopa County Recorder Stephen Richer and State Senator Ken Bennett filed amicus briefs in defense of a Ranked Choice Voting (RCV) ballot initiative with the Arizona Supreme Court last week. 

Bennett served as the secretary of state from 2009 to 2015. He filed his brief jointly with Helen Purcell, the former Maricopa County recorder who served nearly 30 years. 

Richer said in his filing for Smith v. Fontes that the votes should be counted for RCV, or Prop 140, the “Make Elections Fair Act” — regardless of the existence of a disqualifying number of duplicate signatures gathered — because the “election has already begun” and, he says, state law prohibits the prevention of counting votes cast. 

“Hiding the results or attempting to prevent the vote from being tabulated is an inequitable result,” said Richer. “And it is at odds with Arizona public policy that demands government transparency. Not counting the vote does not mean it did not happen.”

Richer said all arguments concerning the initiative’s qualifications to be on the ballot were rendered moot after the deadline passed to certify and print the ballots. 

“To be resolved with a high degree of certainty may not be currently possible given the election time constraints,” said Richer. “The issue has now, at least partially, gone to the people. The Recorder believes there is benefit to allowing the vote to occur, and assuming it is otherwise constitutional, to count.” 

Richer stated that his office had already printed over 21,500 different ballot styles and mailed many of them out to in-state residents as well as military and overseas voters, some of which have been returned: over 1,100 out of about 8,500. 

“Recorder submits that once the ballots are printed, the time for signature challenges must end,” said Richer. 

Richer also said that state law prohibits the destruction of any public record of a vote, and that Maricopa County’s tabulation machines would tabulate the votes returned. 

The recorder noted that state law does allow for courts to enjoin the certification and printing of ballots, but not the power to enjoin the counting of votes.

“[I]f the voting tally is a public record, the Recorder does not see how Maricopa County can either destroy it or fail to release it,” said Richer. 

Similarly, Bennett and Purcell argued that their combined expertise on elections made it clear that timeliness in elections takes precedence over validity.

Bennett and Purcell cited court precedent in their argument of mootness regarding the challenge to Prop 140’s validity. Secretary of State Adrian Fontes instructed county election officials to include Prop 140 on their ballots printed in late August. 

“Courts have consistently upheld the principle that pre-election challenges must be resolved before the ballot printing deadline,” said the pair. “[And] as a practical matter, invalidating Prop 140 after voting has already begun would result in electoral chaos and damage voter confidence in the efficacy of their votes.” 

That ballot printing deadline occurred a day after the Arizona Supreme Court remanded the case to the Maricopa County Superior Court for review, citing the exclusion of evidence pertaining to 40,000 duplicate signatures. The exclusion of those contested signatures reduce petition signatures to what is below the total required to qualify for the ballot. 

Though the Maricopa County Superior Court did find that nearly all of the 40,000 signatures were duplicates, the court ruled that the state constitution didn’t allow for those votes cast on Prop 140 to be ignored. That ruling led to the appeal which the Arizona Supreme Court now considers, and with which Richer and Bennett disagree. 

AZ Free News is your #1 source for Arizona news and politics. You can send us news tips using this link.