Arizona Case Asks: When is an Election Error “Garden Variety”?


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Recently in Arizona, a federal judge was asked to decide whether or not a balloting error required a new election. AZCentral has more:

A federal district court judge has halted Tuesday’s controversial election for a seat on the Peoria city council.

In his ruling, U.S. District Judge David Campbell honored a request by candidate Dr. Ken Krieger and issued a court order to block the counting of any votes in the Mesquite District race. A special election will be held instead.

Krieger is running against Ben Toma and Bridget Binsbacher for the Mesquite council seat. Mail-in ballots have already been sent in.

Krieger sued Aug. 7 after two mail-in ballots, printed on white and yellow paper, failed to include his name. A third ballot on purple paper was mailed out and did list his candidacy but the city council voted to count the flawed yellow-and-white ballots anyway.

At issue in the case was the question of whether the ballot error could be considered “garden variety” in election administration:

Krieger’s attorney Kory Langhofer argued that the candidate was harmed because he was denied the chance to vote for himself and that the court need only prove that the election was fundamentally unfair because the language on the purple ballot was confusing. Langhofer argued that the only way to ensure a fair election was halt the process and start over.

Peoria City Attorney Steve Kemp countered that no legal damage was done to Krieger and the election was fair because voters still had opportunities to consider all the candidates. Kemp and others argued that Krieger can go to Maricopa County Superior Court to challenge the election after votes are counted, preserving his rights under state law.

Campbell noted that election law is “all over the map,” as he looked to establish the proper precedents to rule on the Peoria case. Historically federal courts around the country have been reluctant to interfere with local elections, and judges at all levels are loathe to meddle with the will of voters…

One precedent, Campbell noted, made a distinction between what the court called “garden-variety election irregularities” and the “non-garden-variety” kind. The more mundane problems would not be enough to prove a violation of constitutional voting rights, the courts ruled. Those included: human error, uncounted ballots and malfunctioning machines.

Not surprisingly, the two sides had a different answer to that question:

Langhofer argued that it wasn’t the mistaken yellow and white ballots, but the decision to count them, offer a substitute purple ballot and plow ahead with the election that violated Krieger’s rights.

“This was an intentional decision to count ballots that nobody disputes were not proper. This is not a garden-variety irregularity,” Langhofer said.

Nonsense, said Kemp.

“This is exactly the kind of garden-variety situation cited by the Ninth Circuit,” Kemp argued, likening the problem to that of votes being mistakenly uncounted. “The printer made an error.”

Ultimately, the judge sided with the candidate and blocked the city from counting the votes in the disputed race.

This story raises a larger and even more important question, however: how much tolerance for error SHOULD there be in election administration?

On the one hand, it doesn’t seem good for the profession to tell courts that leaving candidates off of ballots and choosing to count those ballots anyway is a “garden variety” mistake – suggesting that such errors happen all the time. It feels like that opens the door to tolerating larger and larger mistakes as the “garden variety” grows.

On the other hand, not ignoring the occasional inadvertent error creates the prospect of disappointed candidates using such errors to force a jurisdiction to re-run an election they might not have won anyway – at great cost to both taxpayers and public confidence in elections.

I believe that election officials do it right – and get it right – in the vast, vast majority of elections and that therefore it doesn’t make sense to require a do-over every time something goes wrong. Still, it’s in the best interest of the field to have the list of “garden variety” mistakes be as short as possible – not so much as to avoid litigation as to assure voters that election officials do their darndest not to make mistakes that could taint an election.

As an attorney friend of mine used to say, that has the added advantage of being true.

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