ALJDEC decisions subject to certification as final

08F-HAVA127-SOS · Secretary of State · 2008-11-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 29th, 2008; 9:00 a.m. APPEARANCES: Ms. Janet and Mr. Bobby Tite represented themselves. Pima County was represented by Mr. Daniel Jurkowitz, Deputy Pima County Attorney. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson. Testimony was heard and stipulations entered into the record, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. On September 23rd, 2008, Ms. Janet and Mr. Bobby Tite (“the Tites) filed an Election Grievance Form in the Arizona Secretary of State’s Office relative to the September 2nd, 2008 primary preference election, each alleging that their provisional ballot was not counted in the recent primary preference election. 2. On September 29th, 2008, the Secretary’s office issued a written Notice Hearing and Appointment of Administrative Law Judge, and referred the case to the Arizona Office of Administrative Hearings.

3. Prior to the scheduled hearing date the County of Pima (“Pima”) filed a motion to Vacate the Hearing and Dismiss the Complaint, on October 16th, 2008, and a Motion to Consolidate the two matters on September 29th, 2008. The Motion to Consolidate was granted; the Motion to Vacate and Dismiss was denied in favor of allowing the issues raised by the County in motion to be heard at the scheduled hearing. 4. At the hearing the parties stipulated to all material facts, which were set forth by the County in its Memorandum of Points and Authorities filed in company with its Motion to Vacate and Dismiss. Those stipulated facts are set forth infra as Findings of Fact ##5 ( 11. 5. The regular deadline to register as eligible to vote in the September 2nd, 2008 primary preference election was August 4th, 2008. The Tites, before that deadline date, were properly registered voters in Pima County, with membership in the Democratic party, and signed up with Pima to be included on the permanent early voting list. All of these facts were true relative to the September 2nd, 2008 primary preference election. 6. Accordingly, Pima mailed to the Tites Democratic party early ballots, mailed to arrive at the beginning of the early voting period, July 31st, 2008. 7. The Tites changed their party registration from Democrat to Independent on July 23rd, 2008. 8. The Tites went to the polls to vote on September 2nd, 2008. The Tites, at that time considering themselves registered Independents, requested a Republican party ballot. The poll workers informed them that since they, the Tites, had already been sent early Democratic party ballots, they would be required to cast a provisional ballot. 9. The Tites did cast a provisional ballot, and each of the Tites’ ballots were subsequently not counted, and Pima informed the Tites of this fact in a timely fashion. The Tites filed their grievances and the applicable administrative processes lead to this hearing, all as indicated hereinabove. 10. Ms. Tite testified at the hearing. Mr. Chris Rhoads, Pima County Chief Deputy Recorder and Registrar of Voters testified. 11. The Tites feel that their votes should have been counted.

CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to 42 U.S.C. Secs. 15481-15485, the “Help America Vote Act” (“HAVA)”, and A.R.S. 41-1092, et sequitur. 2. The burden of proof at an administrative hearing must be borne by the party asserting a claim, right or entitlement and the standard of proof on all issues in this matter is by a preponderance of the evidence. A.A.C. R2-19-119. In this case, all material facts having been stipulated, the only issues remaining are questions of law. 3. Pima filed a pre-hearing memorandum setting forth the federal and state laws it feels are applicable and that require judgment in its favor. The Tites were invited at the hearing to refer the ALJ’s judgment to any law they felt was applicable and in their favor, but did not cite any law. 4. 42 U.S.C. Sec.15482(a)(2) requires that individuals be permitted to cast provisional ballots at their place of polling, in the event there is question about voting eligibility at the time. The Tites were allowed to cast provisional ballots. 5. The provisional ballots were properly transmitted to the Pima County Recorder’s office for verification as required by 42 U.S.C. Sec. 15482(a)(3). 6. The Tites were able to ascertain that their provisional ballots were not counted as required by 42 U.S.C. Sec. 15482(a)(5). 7. The Tites did not cite any law that supports a conclusion that their provisional ballots should have been counted. 8. Pima County cited applicable Arizona law which led to the Tites’ provisional ballots not being counted. That is A.R.S. 16-544.F. and G. 9. A.R.S. 16-544.F. provides that a voter’s political party status as of 45 days prior to a primary election determines that voter’s choice for political party balloting. 45 days prior to September 2nd, 2008, was July 19th, 2008. At that time the Tites were still Democrats, and on the permanent early voting ballot request list. Accordingly, they were sent Democratic party ballots. 10. Under A.R.S. 16-544.G., had the Tites changed their registration from Democratic to Independent prior to the statutory cutoff date of July 19th, 2008, and had they informed Pima at that time that they were requesting to be sent a Republican ballot, they would have been entitled to early receipt of a Republican party ballot. Also, under the same statute, had the Tites changed their registration to Independent before the cutoff deadline, but not informed Pima of which ballot they preferred, no early ballot would have been sent them, and they could have requested, received and voted a Republican ballot at the polling place on September 2nd, 2008. However, since they were still registered as Democrats after the cutoff date they were properly sent Democratic party ballots, and they were entitled only to vote a Republican ballot provisionally and did vote provisionally. ORDER Wherefore, it is hereby ordered that the grievances of Ms. Janet Tite and Mr. Bobby Tite are dismissed. Done this day, November 4th, 2008.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Secretary of State Jan Brewer ATTN: Mary Fontes Election Services Division 1700 West Washington, 7th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, AZ 85701 520-628-5488 Fax: 520-628-5575 www.azoah.com