ALJDEC decisions subject to certification as final

18F-HAVA140-SOS · Secretary of State - HAVA · 2018-02-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

Antonio Villegas,

v.

Pima County.

No. 18F-HAVA140-SOS

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 9, 2018, at 9:00 a.m.

APPEARANCES: Antonio Villegas appeared personally on his own behalf; Pima County was represented by Daniel Jurkowitz, Deputy County Attorney; the Arizona Secretary of State was represented by Kara M. Karlson, Assistant Attorney General.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

On December 5, 2017, Antonio Villegas filed an Election Administrative Complaint Form in the Arizona Secretary of State’s Office relative to the November 7, 2017 election alleging that Pima County had violated Title III of the Help America Vote Act of 2002 (“HAVA”). Mr. Villegas described the alleged violation as follows:

I was told that I was not on the list of voters in Oro Valley.

I was sent to another table where this was confirmed.

I requested a provisional ballot, however was denied.

.

The Secretary of State referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. On December 14, 2017, the Secretary of State’s office issued a Notice of Hearing and Appointment of Administrative Law Judge, setting a hearing on February 9, 2018. The Secretary of State’s notice of hearing provided in relevant part as follows:

This hearing is being held under legal authority and jurisdiction contained in Title III of the Help America Vote Act of 2002, 42 U.S.C. §§ 15481 – 15485. The hearing will be conducted in accordance with A.R.S. §§ 41-1092, et seq. and the administrative rules of the Office of Administrative Hearings, set forth at A.A.C. R2-19-101 through R2-19-122. . . .

This hearing arises from a contested case. The statutes and rules involved and the plain statement of the matters asserted are set forth in Complaint 18F-HAVA140-SOS filed by Antonio Villegas on December 5, 2017 . . .

On January 24, 2018, Pima County filed a motion to dismiss/pre-hearing memorandum (“motion/memorandum”), arguing that HAVA did not apply because the November 7, 2017 election was a purely local election and not directly covered by HAVA under 52 U.S.C. § 21082(a) (formerly 42 U.S.C. § 15482) as applied in the case, Florida Democratic Party v. Hood, 342 F. Supp. 2d 1073, 1075 (N.D. Fla. 2004).

Pima County’s motion/memorandum acknowledged that Mr. Villegas properly presented himself at a polling location for precincts 077/200 at the Church of the Apostles, 12111 N. La Cholla Blvd., for a Town of Oro Valley election on a local proposition and that he was wrongfully denied an opportunity to cast a regular ballot due to a clerical error made in the Pima County Recorder’s Office. Pima County attached to its motion/memorandum a letter dated December 4, 2017, from Pima County Recorder F. Ann Rodriguez to Mr. Villegas, in relevant part as follows:

You stopped by my office shortly after Election Day to let me know about an issue you had on Election Day at the polls in Oro Valley, where you were denied the opportunity to vote a provisional ballot by the poll worker. I have referred the situation to Brad Nelson, who is the Director of the Election Department in Pima County. His department handles poll worker related issues.

I have, however, researched why you and your wife’s names were not on the poll roster to begin with. It appears that the land that your home is located on was originally annexed by the Town of Oro Valley in 1998 (ordinance 098-40). At that time, the larger parcel was vacant land with no registered voters on the property. The property was subdivided in 2015 for residential homes. There was no one living on your street who was registered to vote until you registered in December 2016. At that time, your street was added to our records. However, an error was made in the districts that were assigned to that street. That error has now been corrected and you are showing in the voter registration database in the Town of Oro Valley.

Pima County also argued that Mr. Villegas’ complaint should be dismissed on its merits because poll workers in Pima County undergo extensive training and always offer provisional ballots to persons who are for one reason or another denied a regular ballot. Pima County attached to its motion/memorandum three affidavits that provided in relevant part as follows:

Brad R. Nelson, Director of Pima County’s Elections Department, stated that all Pima County poll workers undergo training that stresses that if an individual presents at a polling location whose name does not appear on the poll roster, the individual must be offered a provisional ballot. Mr. Nelson stated that Pima County was committed to ensuring that every eligible voter be provided an opportunity to cast a ballot and that his office had conducted an investigation into Mr. Villegas’ complaint and had been unable to substantiate his complaint allegations.

Nicholas Vucich, Sr., who has been a poll worker in Pima County since 2002, and has been an inspector since 2004, recalled that on November 7, 2017, while he was working as an Inspector at the Church of the Apostles, Mr. Villegas came to vote but was not listed on the poll roster. Mr. Vucich stated that before the election, he and other poll workers had been trained to offer persons in Mr. Villegas’ situation a provisional ballot. Mr. Vucich stated that he offered to let Mr. Villegas call the county recorder’s office to clear up the matter, but that to Mr. Vucich’s knowledge, Mr. Villegas did not make the call. Mr. Vucich stated that Mr. Villegas was offered a provisional ballot, but was also informed that if he was not properly registered to vote within the jurisdiction, the provisional ballot would not ultimately be counted.

John Harlow, Jr., who has been a poll worker in Pima County since 2012, was the Special Situations Clerk at the Church of the Apostles on November 7, 2017. Mr. Harlow recalled that an individual came to the polling place to vote but that because the individual was not on the poll roster, he was not given a regular ballot. Although Mr. Harlow did not recall specifically what happened to the individual, Mr. Harlow stated that he did not recall anyone being denied a provisional ballot and that before the election, he and other poll workers were trained that if an individual presents at a polling place who is not on the poll roster, the individual should be offered a provisional ballot.

Mr. Villegas appeared personally at the hearing and called the Administrative Law Judge’s attention to the documents he had submitted with his complaint to the Secretary of State, including his voter registration card and the General Election Voter ID Slip that he was given at the Church of the Apostles on November 7, 2017, after his name was not discovered on the poll roster. The General Election Voter ID Slip included five possible scenarios with a box to check next to each one to mark as applicable, as follows:

Voter presented acceptable ID with name and address of voter matching the precinct register.

Voter marked with an E/EARLY BALLOT in Register/Roster. Voter directed to the Special Situation Table.

Voter presented acceptable ID with name and/or address of voter NOT matching precinct register. Voter directed to the Special Situation Table to vote a Provisional Ballot.

Voter DID NOT present acceptable ID. Voter directed to the Special Situation Table to vote a Conditional Provisional Ballot.

Voter not on precinct register. Voter directed to the Special Situation Table. Clerk calls the Recorder’s office at 724-4330. When the recording starts, dial 6.

The fifth option was checked on Mr. Villegas’ form.

Mr. Villegas testified consistently with his complaint. He testified that he presented his voter registration card on November 7, 2017, but was told that his name was not on the poll roster. Mr. Villegas credibly testified when he requested a provisional ballot on November 7, 2017, the poll worker said that he could not give Mr. Villegas a provisional ballot.

Mr. Villegas testified that he went to the Oro Valley city offices and was referred to Pima County. Mr. Villegas testified that he spoke to Ann Rodriguez, who told him that there was a mistake on the poll roster due to construction in the area of Mr. Villegas’ residence.

Mr. Villegas testified that he travelled to Phoenix the day before Thanksgiving to speak to the Secretary of State’s office. Mr. Villegas testified that he was prosecuting the complaint on his own time because he was concerned that poor training of Pima County poll workers could deny qualified voters their right to cast a ballot in the next general election.

Pima County’s attorney did not cross-examine Mr. Villegas or present any of its own witnesses’ testimony. Pima County’s attorney re-urged the arguments raised in its motion/memorandum.

CONCLUSIONS OF LAW

This administrative hearing was held under authority of HAVA, 42 U.S.C. §§ 15481 - 15485 and A.R.S. 41-1092.02(A).

Mr. Villegas bears the burden of proof to establish that Pima County violated HAVA’s provisions by a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

42 U.S.C. § 15482(a)(2) requires that an individual be permitted to cast a provisional ballot at his place of polling if there is question about his voting eligibility at the time. Mr. Villegas credibly testified, subject to Pima County’s attorney’s right to cross-examination, that he requested and was denied a provisional ballot.

The affidavits that Pima County attached to its motion/memorandum, although sworn statements, technically are hearsay. Although hearsay may be admitted in an administrative hearing, it should not be relied upon if it is not the kind of evidence that reasonable persons would rely upon in serious matters. The affidavits establish that Pima County poll workers undergo training before every election cycle.

Although Mr. Vucich stated that specifically remembered Mr. Villegas and that Mr. Vucich offered to let Mr. Villegas call the Pima County Recorder’s office, Mr. Vucich then switched to passive voice, stating that “Mr. Villegas was . . . offered a provisional ballot,” not that Mr. Vucich remembered offering Mr. Villegas a provision ballot. Only the third and fourth options on the General Election Voter ID Slip requires voters to be given provisional ballots and the fifth option, which applied to Mr. Villegas, merely gave him the option of calling the county recorder, which option Mr. Vucich specifically recalled providing to Mr. Villegas. Under the circumstances, Pima County’s evidence does not undermine Mr. Villegas’ credible testimony at the hearing that he was not provided a provisional ballot.

However, Mr. Villegas’ complaint was for a violation of HAVA. Mr. Villegas did not dispute that HAVA only requires that provisional ballots be offered at polling locations “in an election for Federal office” and that the November 7, 2017 election was a purely local election. Although A.R.S. § 16-584(B) requires that qualified voters whose names do not appear on the poll roster be provided with a provisional ballot, the complaint that Mr. Villegas filed did not allege a violation of that statute and the Secretary of State did not refer Pima County’s possible violation of state statute to the Office of Administrative Hearings for an evidentiary hearing. Therefore, it does not appear that any further relief is available in this administrative forum.

RECOMMENDED ORDER

Based on the foregoing, Antonio Villegas’ complaint that Pima County violated HAVA shall be dismissed.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of that certification.

Done this day, February 14, 2018.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Michele Reagan, Arizona Secretary of State