Election workers could be charged with crimes for making mistakes under GOP bills

By: - January 31, 2022 10:09 pm

Photo by houstondwi_photos | Flickr/CC BY-SA 2.0

The Senate Government Committee gave its approval to proposed legislation that would punish election workers who misplace ballots and penalize contractors who don’t meet the terms of their contracts. 

Senate Bill 1055 states that a contractor who provides election-related services to the state or a county “and that fails to perform its obligations under the terms of the contract” is liable for damages equal to the value of the contract, and could even face criminal charges in the form of a class 2 misdemeanor. 


Committee Chairwoman Kelly Townsend, the bill’s sponsor, said SB1055 was a direct response to the findings of the so-called “audit” that Senate President Karen Fann ordered to review the 2020 election in Maricopa County. Among the disputed findings of that review were claims that some duplicated ballots — ballots on which an election worker recopied a voter’s choices because the original ballot couldn’t be read by tabulation machines — had missing, incorrect or obstructed serial numbers, and that some ballots lacked proper chain-of-custody documentation. 

“I think it’s important that our contractors be held to the same accountability as our elected officials when they’re conducting an election,” said Townsend, an Apache Junction Republican. 

The committee also approved Senate Bill 1056, which states that any ballots that are not included in election officials’ tallies because they were misplaced can’t be counted, and that anyone who misplaces a ballot is guilty of a class 2 misdemeanor. If an uncounted, misplaced ballot is found and the voter can be identified through the envelopes used for early or provisional ballots, that voter can sue whichever government entity administered the election. 

“This is about chain-of-custody and this is about ballots showing up out of the blue and changing the outcome of an election,” Townsend said.

She did not cite any specific examples of instances in which misplaced ballots were found and altered the outcome of an election. But in the 2014 election for the 2nd Congressional District, Republican Martha McSally led incumbent Democrat Ron Barber by 138 when election workers found a box of 213 uncounted early ballots. The discovered ballots added 28 votes to McSally’s lead, and she went on to defeat Barber by 161 votes. 

Critics of the bill raised several concerns. One was that there was no requirement of intent, meaning that a person who inadvertently lost or misplaced a ballot would be subject to the same punishment as someone who intentionally did so. Jennifer Marson, executive director of the Arizona Association of Counties, said an election worker shouldn’t be penalized because a ballot accidentally slid under a table.

“Because we all work with humans, we want to allow for human error,” Marson said. 

Opponents also questioned why a misplaced ballot shouldn’t be counted. 

“A person’s right to have their vote counted, if it was cast legitimately, should not be taken away by human error,” said Jodi Liggett, a lobbyist for the League of Women Voters of Arizona. 

Liggett also said the bill “could potentially intimidate poll workers who should not have to work under the threat of legal action.” 

Some committee members were unpersuaded that an election worker who accidentally misplaced a ballot should escape punishment. Sen. Wendy Rogers, R-Flagstaff, cited the “audit” when questioning Liggett and Marson’s assertion that innocent mistakes shouldn’t be punished. 

“I guess what we’re driving at is, evidence shows that votes were not managed with chain of custody. And the responses have been, they were innocent mistakes. But when we, as American citizens, lose our vote because someone says it was an unwitting error and is not held accountable, there are a lot of us who have a problem with that,” Rogers said. 

Maricopa County has vehemently denied the audit team’s allegations that there were any chain-of-custody problems involving the ballots. Megan Gilbertson, a spokeswoman for the Maricopa County Recorder’s Office, told the Arizona Mirror that chain-of-custody for the ballots is documented, but that Fann did not subpoena those documents. 

The county also disputes the audit team’s allegation regarding serial numbers on duplicated ballots. In an official response to the findings, the county said it’s not aware of a single instance in which a duplicated ballot or its original were missing a serial number, and that Cyber Ninjas, the unqualified and biased company Fann chose to lead the audit team, did not provide any data the county could use to verify those claims. The county acknowledged that there were some instances in which a serial number was printed over a timing mark on the original version of duplicated ballots, which can make the number difficult to read, but wouldn’t affect the tally.

Sen. Warren Petersen, R-Gilbert, supported SB1056, but agreed that it should only punish people who intentionally misplace ballots, not people who do so accidentally. He said the bill will be amended on the Senate floor.

“It is a very important distinction,” Petersen said. 

‘Federal-only’ voters and more

The committee approved several other election-related bills, as well.

Senate Concurrent Resolution 1005, also sponsored by Townsend, would ask voters to amend state law to require “federal-only” voters to show proof of citizenship before receiving a ballot. 

Proposition 200, which voters approved in 2004, requires people to show proof of citizenship. But federal voter registration forms, which Arizona is legally bound to accept under the National Voter Registration Act of 1993, don’t have that requirement. 

As a result, the state can bar people who can’t prove citizenship from voting in state-level elections. But those who fill out federal voter registration forms without proving their citizenship can still cast ballots exclusively in federal races for president, U.S. Senate and U.S. House of Representatives.

Townsend wants voters to amend the 2004 proposition so that federal-only voters still must show their driver’s license, birth certificate, passport, naturalization papers or other documents that would demonstrate citizenship before they receive a ballot. 

Federal-only voters, like other voters, must present identification before receiving an early ballot or voting in person. That can include official pieces of mail, like utility bills and bank statements, that show the voter’s name and address as they appear in official voter registration records. Townsend suggested that non-citizens could create false bank statements for purposes of casting fraudulent federal-only ballots. 

“I’m not saying that’s happening, but it could happen,” she said. 

According to the Arizona Secretary of State’s Office, 7,628 of the state’s roughly 23,000 federal-only voters cast ballots in the 2020 general election. 

Another bill approved by the committee, Senate Bill 1260, would require county recorders to cancel a person’s voter registration if they receive confirmation from another county that the voter has re-registered there. And any person who knowingly helps someone who has registered to vote in a different state to cast an Arizona ballot, such as by forwarding them an early ballot, would be guilty of a class 5 misdemeanor. 

Sen. J.D. Mesnard, R-Chandler, who sponsored the bill, said SB1260 only targets deliberate acts that assist a person who is not legally entitled to vote in Arizona cast a ballot here.


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Jeremy Duda
Jeremy Duda

Jeremy Duda is a Phoenix native and began his career in journalism in 2003 after graduating from the University of Arizona. Jeremy Duda previously served as the Mirror's associate Editor. Prior to joining the Arizona Mirror, he worked at the Arizona Capitol Times, where he spent eight years covering the Governor's Office and two years as editor of the Yellow Sheet Report. Before that, he wrote for the Hobbs News-Sun of Hobbs, NM, and the Daily Herald of Provo, Utah. Jeremy is also the author of the history book “If This Be Treason: the American Rogues and Rebels Who Walked the Line Between Dissent and Betrayal.”