The “Democracy and Accountability Act” Might Just Undermine Democracy

A newly-filed initiative measure will be pitched as a effort to reign in alleged self-dealing by lawmakers and empower voters to have a greater voice in Arizona affairs. But the effect on election officials likely will never get mentioned. Make no mistake about it: the Democracy and Accountability Act will wreak havoc on election administration and might actually undermine democracy.

Expanded Early Voting Cuts Into A Critical Planning and Preparation Period

On the surface, it sounds laudable to expand early voting from 27 days to 40 days before the election. But most people do not understand how much critical planning and testing currently takes place between day 27 and day 40. It’s not so easy to move those election administration functions earlier in the planning timeline.

First, election officials are often in a crunch to issue ballots to meet the current 45-day deadline under federal law to transmit early ballots to military and overseas voters. Just prior to that deadline, counties are waiting for the results from candidate challenge lawsuits, laying out their ballots, working with their ballot printer to coordinate delivery, ensuring the timing marks are properly aligned, ensuring that voting machines can tabulate the ballot, and conducting a host of other tests and checks. The preparation is so last-minute that most military/overseas ballots are emailed as PDFs (and later duplicated onto real ballots upon receipt by the election official). If county recorders had to transmit early ballots to ALL voters during this same basic time period, this would be a nearly impossible task to accomplish.

Second, the Act would push early voting into the critical period used by election officials to program election equipment like tabulation machines and electronic poll books. Under Arizona law, for example, “electronic ballot tabulating systems shall be tested for logic and accuracy within seven days before their use for early balloting.”  Under current practice, the early ballots are generally prepared before “L&A” testing period arrives. But under Act, L&A testing would occur roughly at the same time as early ballot preparation. Simultaneously executing these tasks  is certainly possible, but it heightens the risk of error.

Third, moving the commencement of early voting before the voter registration deadline would cause problems. Under current practice, the voter registration roles are essentially locked down after the 29-day registration deadline, which is known as “books closed.” There are some exceptions, but political party changes received after the registration deadline do not go into effect until after the election.  This allows county recorders to issue the correct primary election ballot when early voting begins 2 days later, at 27 days before the election.  However, if early voting commences before the registration deadline, a voter could switch political parties after receiving a party’s primary election ballot. Then what?  Should the county recorder electronically “cancel” the voter’s original party ballot and automatically send the new party ballot?  Should the county recorder contact the voter before doing anything?  The existing practice likely differs county-to-county when military/overseas voters do this under existing law, but the numbers are likely so small that the lack of uniformity or legislative direction is not so bad.  But if ALL voters are eligible to change parties after receiving an early ballot, new rules will be needed. And it is unclear whether Legislature will be able to supply those rules without running afoul of the Voter Protection Act. The initiative indicates that ANY legislative change that does not “expand” voting rights will be deemed a violation of the Voter Protection Act and therefore never go into effect.

Finally, even if the expansion of early voting makes sense, it does not make sense to leave intact the current prohibition on tabulating ballots earlier than 14 days before election.  If election officials will start receiving ballots earlier, why not also start tabulating ballots earlier in order to receive quicker election results?

Why It Matters.

Put aside these other glaring issues with the Act:

    • The Act eliminates one (albeit important) ballot harvesting ban, but leaves intact the other ballot harvesting ban in A.R.S. § 16-542(D).
    • By eliminating even the option to place a circulator ID number on initiative petitions, the Act increases the chances petitions will be invalidated by the Secretary of State. The circulator ID concept was originally created to enable the Secretary to better identify circulators and confirm they were properly registered. Otherwise, if the Secretary could not read circulators’ handwriting, the Secretary had no choice but to assume lack of registration and invalidate the entire petition sheet pursuant to A.R.S. § 19-121.01(A)(1)(h).  By not just eliminating the penalty for failure to use a circulator ID, but also the option to use one, the Act’s sponsor’s have impeded their own goal of enfranchising Arizona voters.
    • By going the statutory route, the Act will only eliminate these particular restrictions on initiative petition circulators. The Legislature generally will be free to enact a bevy of other restrictions.  It’s obvious why the drafters did not go the constitutional route (the Act almost certainly would have been struck down on  “single subject rule” grounds), but the statutory route might create only a pyrrhic victory.

The drafters likely considered these issues and obviously thought otherwise.  Fair enough. But it is hard to believe that election administration was seriously considered. Elections are hard enough to administer as it is. It’s a complicated logistical effort that must be carried out under a rigid and largely sequential timeline.  Major changes to that timeline, like this expansion of early voting, risks that something will get missed. That’s why the Legislature is the best venue to make these kinds of changes, listening to experienced county election officials on the front lines. It’s too bad that it’s too late to change that piece.



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