People wash their hands by the entrance to Sapphire of Tucson Nursing and Rehab on May 1, 2020. (Photo: David Wallace/The Republic)

Election officials in Arizona can use videoconferencing to help some voters confined to hospitals, nursing homes or living with severe disabilities cast their ballots, a judge ruled Monday, rejecting calls to declare the new pandemic-era practice illegal.

Attorney General Mark Brnovich asked the court to strike down plans adopted by the Maricopa County Recorder’s Office and Arizona Secretary of State’s Office for limited “virtual” voting assistance, arguing that state law does not allow anyone to cast a ballot by video.

Gov. Doug Ducey also opposed the policies, contending that state law requires officials provide such services in person.

But in a ruling that reflected how unusual this election year is, Maricopa County Superior Court Judge Randall H. Warner found that videoconferencing may be necessary for some voters with very particular circumstances who would otherwise have to choose between protecting themselves from COVID-19 or forgoing their right to participate in the electoral process.

“Federal law does not allow Arizona to impose on a disabled voter the choice between voting and protecting their health,” he wrote.

The judge warned, however, that his ruling “does not mean the County Recorder is free to use video voting whenever he wants or for any voter who asks.”

Still, Fontes declared victory.

“This is a win for accessibility,” the county recorder said in a statement. “We will continue to provide this option to the most vulnerable population of Maricopa County voters when necessary, ensuring compliance with all applicable law.”

A longstanding practice and COVID-19

The legal battle over the practice began in earnest last week but stems from longstanding policies for assisting a small portion of the state’s voters who are physically unable to get to the polls or mark their ballots due to limited mobility or severe illness.

Arizona law allows voters to request what is known as a “special election board” in such circumstances.

Each board comprises one Democrat and one Republican who visit a voter wherever they are and help them complete a ballot.

With some hospitals and nursing homes restricting visitation due to the pandemic, Fontes created a plan for boards to help voters by video conference when necessary. 

Under its written policy, the board will still travel to the voters’ location but may not be in the same room.

The Recorder’s Office said it received requests for special election board services from 44 voters during the primary election in August. Boards used videoconferencing to help 10 of those voters, including voters with amyotrophic lateral sclerosis (ALS), multiple sclerosis and cerebral palsy, Fontes said.

These voters could not receive assistance face-to-face because of COVID-19, he added.

Pima County made similar plans for the general election and Secretary of State Katie Hobbs issued guidance on the matter.

But Ducey, a Republican, objected to these plans in late September, arguing in a flurry of sternly worded letters to Secretary of State Katie Hobbs, a Democrat, that assisting voters by videoconferencing would be illegal.

State law says ballots from special election boards must be delivered in person, he noted.

The Attorney General’s Office has argued there is nothing in state law that allows for voters to cast their ballots through video conferencing or exempts special election boards from delivering ballots in person. Moreover, the office argued that this process could lead to mistakes and fraud.

Amid mounting criticism, Fontes went to court last week, asking a judge declare his policy valid.

What happened in court

But during a hearing on Monday, a lawyer for the Attorney General’s Office said Brnovich, a Republican, did not necessarily oppose allowing voters to cast ballots by video.

“We’re not saying that under no circumstances can the special election board use video,” said Deputy Solicitor General Michael Catlett.

Instead, he suggested that such processes should be left to each board.

Apparently flummoxed by the line of argument, a lawyer for the Recorder’s Office said it was “very hard to follow what the attorney general’s argument is.”

If assisting voters via video conferencing is all right, it would only make sense for election officials to write down policies and procedures for doing so, attorney Joshua Bendor argued.

“The attorney general seems to be OK with these happening, they just don’t want the recorder to write down how these are supposed to happen,” he said.

Warner described as a “non-issue” the attorney general’s argument that special election boards — not county recorders — should decide when and how to help a voter video conferencing.

“The Attorney General appears to envision that a special election board would make this decision upon meeting the voter, and then come up with a process on its own. But special election boards have no administrative structure or resources of their own; they are administered by county recorders,” Warner wrote.

“Nothing in Arizona law precludes the County Recorder from anticipating that such requests might be made during the pandemic and outlining a process to be followed if they are.”

As for the attorney general’s arguments last week that the process might lead to errors and fraud, the judge wrote that the chance of fraud is low.

It is unclear if the attorney general will appeal.

“We are still reviewing today’s court decision. It is important to ensure all voters can safely cast their votes while also maintaining Arizona’s election integrity safeguards,” said Katie Conner, a spokesperson for Brnovich. “We will continue to work with the court and election officials to achieve those goals.”

Contact Andrew Oxford at [email protected] or on Twitter at @andrewboxford.

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