Aguilera v. Fontes II

Arizona
Nov 12, 2020
Nov 29, 2020
Sharpies + electronic tabulators created voting problems
witness testimony, documented election procedures
to cast a new vote, in-person observation of ballot duplication
plaintiff lost; no impact, sanctions on plaintiffs

Summary

Plaintiffs Laurie Aguilera and Donovan Drobina of Phoenix, Arizona, had trouble voting on election day. They filled out their ballots with Sharpie markers, and the tabulation machine seemed to have trouble reading the ballots. When putting their ballots into the tabulation machine, the machine is supposed to give a confirmation message that the ballot was received. Aguilera received no such confirmation. When Drobina put his ballot into the machine, it was rejected and returned to him. He tried a second time, and it was rejected a second time. He then inserted his ballot into a 'lower slot.' This is the slot for defective ballots that would later be cured. The curing process involves election workers copying the votes indicated onto a new ballot and feeding the new ballot through the tabulator. In this lawsuit, this process is referred to as 'human adjudication.' Though adjudication is supposed to be undertaken in public view, plaintiffs claim that it wasn't. Therefore, Drobina has no way of knowing whether the adjudication of his ballot actually occurred. The lawsuit alleges, "A ballot cast by a voter who has followed [all] instructions should never be subject to human Adjudication."

Plaintiffs ask for a public statement by election officials acknowledging these problems, a chance for Aguilera to cast a new vote that will be counted, and a court order requiring adjudication to take place within public view during any recounts and in later elections.

After some trouble finding an approperiate judge, the case was assigned to Margaret Mahoney to the mutual satisfaction of both parties.

Defendants described this case as 'Sharpiegate III,' compared it to a B-movie monster, and asserted that "like many B-movie plots, the sequel is decidedly worse than the original" before listing four reasons why the case should, in their opinion, be dismissed: 1) the case was not filed in time ('latches'), 2) plaintiffs' greviances are too vague to demonstrate standing, 3) average voters have no standing to sue over how elections are run unless a law is violated, and none was, and 4) plaintiffs don't ask for any relief that the courts are authorized to provide. Defense cites Gamza v. Aguirre "Unlike systematically discriminatory laws, isolated events that adversely affect individuals are not presumed to be a violation of the equal protection clause."

On November 20th, the evidentiary hearing was held followed immediately by the oral arguments on whether to dismiss the case. After hearing evidence and argument all day, Judge Mahoney ruled from the bench that they would be dismissing the case. In the written dismissal, Judge Mahoney admitted that there had been problems, but wrote "THE COURT FINDS that the law cannot provide, nor does it guarantee, perfection." The judge refuted the defense's theory of 'latches,' that the case was filed too late, and instead dismissed the case on its failure to demonstrate its merits. The part of the case about the public having physical access to view the adjudication was appealed, but the Arizona Court of Appeals rejected the appeal citing lack of jurisdiction.

Courts

AZ Court of Appeals (Div. 1)

# CV 20-0688
Judges:
David B. Gass
Michael J. Brown
David D. Weinzweig
Feb 8, 2021
Jun 15, 2021

AZ Superior Court (Maricopa Co.)

# CV2020-014248
Judge Margaret R. Mahoney
Nov 12, 2020
Nov 20, 2020

Court Documents (64)

Sources: