Reflections on the Recount

On Friday afternoon, Christine Jones conceded the Republican primary election in Arizona Congressional District 5 to Arizona Senate President Andy Biggs. (Statecraft served as lead counsel for Biggs’s campaign throughout the election and recount.)  Biggs initially led by just 9 votes–and Jones conceded and agreed to dismiss her pending lawsuits once Biggs’s lead grew to 27 votes.  This concluded the most remarkable (and litigious) congressional primary in Arizona history.

The recount and related lawsuits illustrate several points about Arizona election law:

  1. Arizona has a very late primary.  Relative to other states, Arizona has a very late primary election–leaving only three weeks between the primary election and the deadline for printing military and overseas (UOCAVA) ballots for the general election.  And because election officials don’t finish counting ballots for several days after a primary, the underdog then has roughly two weeks in which to complete a recount and an election contest.  That is an extraordinarily difficult task, and such compressed timelines stack the deck heavily in favor of the leading candidate.
  1.  The Ballot-Counting Machines Are Imperfect. Arizona has seen several large scale recounts in the last three election cycles (McSally-Barber in 2014, Robinson-Weisser in 2012, and Prop. 112 in 2010).  Those recounts seemed to show that our ballot-counting machines had infinitesimally small margins of error (only 0.0004% in the largest of those three recounts).  This recount demonstrated otherwise.  As a result of the machine recount in this race, Biggs’s lead grew by 11 votes out of 86,000–which is still small, but much more sobering at 0.01%.  And for races decided by this margin, Arizona law does not provide a satisfactory process to ensure that the machines “get it right.”  We ultimately didn’t need to cross that bridge in the Biggs-Jones recount because our margin of victory was somewhat beyond the (greater than expected) margin of error, but you would have to pity any campaign attorney finding him/herself in that position.
  1.  Maricopa County Elections Are Exceptionally Well Run. Helen Purcell, the Maricopa County Recorder, has endured a great deal of criticism since the 2016 Presidential Preference Election.  Some of this is fair; the PPE was obviously not her finest hour.  But on the whole, Maricopa County is exemplary in its handling of election matters.  If you doubt this, ask to tour their facility at Third Avenue and Lincoln and ask the most difficult questions you can muster.  You will find that they have very good processes in place, and the office is run by experienced and well trained staff.  With the notable exception of the 2016 PPE, their expertise and performance rivals anything you could find in the private sector.  Most of the criticisms have been unfair.
  1.  Elections Are Binary and Zero Sum. One final observation that is not specific to Arizona, but is common to election law everywhere: Elections are binary and zero sum; one side wins it all, and everyone else loses completely.  Nobody “almost” wins or loses; you win or you lose.  You can’t “settle” a recount lawsuit or share a place in the winner’s circle.  (This gives rise to the oldest joke among election lawyers: “What do you call the guy who won the recount by one vote?  ‘Congressman.'”  Yuck, yuck, yuck.)  This unavoidably makes recounts intensely competitive and adversarial–and fundamentally unlike lobbying, where compromise and negotiation are part of the craft.

Finally, warmest congratulations to our friend Andy Biggs on his win.  It was been a pleasure to design and execute his campaign’s legal strategy–and we look forward to seeing him serve the East Valley in Congress for many, many years.

AZ Ballot Measures Survive

Today the trial court issued rulings in two ballot access lawsuits, both concerning citizen initiatives (recreational marijuana, in which Statecraft defended the ballot measure committee, and minimum wage). Both rulings were in favor of the initiative committees and allow the initiatives to be printed on the November ballot.

The rulings are the latest data points in a broader pattern in ballot access litigation: judges tend to lean marginally in favor of ballot access, and close calls tend to go for the proponents of ballot access. (Indeed, it appears that no published judicial decision in Arizona has removed an initiative from the ballot in more than 15 years based on defects in the form or contents of the petitions.) And although both of today’s decisions concern initiatives, this trend can be seen in candidate and referendum ballot access cases as well. In light of this trend, opponents of ballot access are wise to make sure their arguments and evidence are well organized, not attenuated or inferential, and clearly presented. Arizona judges will certainly remove candidates and ballot measures from the ballot when appropriate; they just won’t do it unless deficiencies are clearly proven.

The reason for this trend is difficult to surmise. It may be that trial judges are concerned about reversal in the appellate courts, or that they are comfortable punting “close calls” to voters and political processes. But whatever the causes, the trend is difficult to deny.

Court watchers should of course remain skeptical of any overt or unspoken judicial favoritism or bias, whether in favor of the government (a favorite point of criticism amongst private attorneys who litigate against government officials and agencies) or ballot access proponents; neutral and evenhanded application of the law is always best. But litigants are wise to enter the courtroom with eyes wide open as to the realities of judicial decision making in ballot access cases.