PHOENIX -- The top elected officials of the two major parties are squabbling over election procedures, with the ability of some nursing homes and other facilities to vote hanging in the balance.
Democrat Secretary of State Katie Hobbs has said counties can use a procedure that allows members of already legal “special election boards’’ to accept ballots that are effectively filled out via telephone or video conference. This would occur when board members are not allowed to interact directly with residents because of concern for covid-19.
But Gov. Doug Ducey, in a letter to Hobbs, says there’s no legal basis for the “experiment’’ she has proposed.
“These policy changes should be suspended immediately so that Arizonans can continue to have confidence and faith in the integrity of our election system,’’ he wrote.
Hobbs responded by telling the Republican governor that the procedures were developed “in close collaboration with your staff and the Arizona Department of Health Services.’’
Ducey, however, said it is “simply not an accurate representation’’ that what Hobbs and her staff showed them is what she wants to do. Anyway, Ducey said, it doesn’t matter if they did.
“They are not election law experts, and do not have have the authority to circumvent the legislative process or the election procedures manual process clearly defined by law,’’ he said.
And late Wednesday the governor upped the ante, asking Attorney General Mark Brnovich, also a Republican, to look into what Hobbs is doing.
Hobbs said if Ducey believes such a procedure is illegal — a point she is not conceding —there is a simple remedy: Issue an executive order under the emergency he declared due to the covid-19 outbreak authorizing this practice where necessary or, alternately, authorize any other solution to ensure that all Arizonans get to vote.
Ducey has repeatedly used that authority to suspend other state laws.
For example, he declared that medical personnel providing certain assistance during covid-19 are immune from civil liability for injuries they cause “notwithstanding any provisions of the Arizona Revised Statutes, laws, associated regulations, rules, policies or procedures.’’ Ducey also directed state liquor agents and state and local police to ignore violations of laws that prohibit restaurants from selling alcoholic beverages to go.
And he decided to simply extend the expiration date of driver licenses of those 65 and older to protect their health by preventing them from having to be exposed to the virus when they visit Motor Vehicle Division offices.
But gubernatorial press aide Patrick Ptak said his boss won’t do that here because this is different.
“We want to make sure that people have trust in the process and in the officials who are administering this election,’’ he told Capitol Media Services.
Ptak pointed out some of the governor’s actions have been challenged in court. He said if someone were to sue over an order allowing video voting in these circumstances it could end up that these ballots would not be counted.
He conceded, though, that would be the same result if people do not get to vote in the first place.
Hobbs acknowledges there is no specific legal authority. But she says these rules were crafted before anyone ever thought about covid-19 and situations where visitors to nursing homes -- including election officials who normally would provide in-person assistance to residents to vote -- would not be allowed.
Still, Hobbs says what she is doing is legal and proper. And she said it’s not prohibited.
“Elections officials have a duty to protect the fundamental right to vote, while upholding our constitution and laws, regardless of the pandemic,’’ she responded to Ducey.
There are existing procedures to have special election boards, composed of one member of each major party, go to long-term and residential care facilities as well as hospitals or where someone is disabled to help that person vote. What board members do now is meet with the person and fill out the ballot at the voter’s direction.
What Hobbs is addressing is what happens if board members are not permitted to enter a facility due to covid-19 access restrictions or the voter is not comfortable receiving assistance through direct contact. What’s also required is a statement that the voter “does not have a trusted caregiver, fellow resident, or family member or other third-party with visitation access to provide assistance.’’
Hobbs said nothing changes here, with the board still face-to-face with the voter, albeit over a video link, filling out the ballot. And Hobbs said having the board in the same facility satisfies the “in-person’’ requirement, even if they are not in the same room.
Ptak questioned the need to change voting procedures, particularly this close to an election. He said the state managed to conduct other elections this year, including the August primary, all without changing procedures.
But Hobbs said there were not the same requests for special election boards coming from nursing homes and elsewhere for special election boards as there are for the Nov. 3 general election.
Separately, Hobbs is denying a claim by Ducey -- fueled by an email to an aide to the governor from Yuma County Recorder Robyn Pouquette -- that she was allowing people to actually register to vote by telephone.
Hobbs says all she is doing is allowing people to start the process by phone. But they would still have to submit a signed and competed voter registration form before Election Day to actually be able to cast a ballot.
Both Hobbs and Ducey agree the pandemic has resulted in unusual challenges to voting.
Working with Hobbs, the governor set aside $9 million in federal dollars, more than half for county recorders and election officials. That includes hiring temporary staff and poll workers, increasing the number of secure ballot drop-off locations, and expanding curbside voting at polling places.
And there was cash for reusable face masks for election workers, disposable masks for voters, gloves, hand sanitizer, disinfectant spray and disposable pens.