DOJ Investigation of Maricopa County Voting

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The U.S. Department of Justice has notified the Maricopa County Recorder’s office that it will be investigating the March 22 Presidential Primary Election, which saw lines lasting well past the time the polls closed as a result of the number of polling locations being drastically reduced. Joe Kanefield, a former state elections director and partner at Ballard Spahr, will give a legal analysis of the nascent investigation.

Ted Simons: Coming up next on "Arizona Horizon," why the U.S. Justice Department is investigating Maricopa County's recent election problems. Also tonight, we'll look at a new law that makes for greater availability of venture capital. And today is Arizona Gives Day, a big day for local charities. That's next on "Arizona Horizon."

Video: "Arizona Horizon" is made possible by contributions from the Friends of Arizona PBS, members of your PBS station. Thank you.

Ted Simons: Good evening and welcome to "Arizona Horizon," I'm Ted Simons. House Republican leadership is refusing to bring up an adoption bill for a vote on the house floor. Representative Rebecca Rios is offering an amendment to protect the rights of same-sex couple whose adopt children. But house leaders have blocked the bill in order to avoid debate on the issue. Rios' amendment is aimed at clearing up issues of same-sex adoption following the legalization of same-sex marriage last year. The Maricopa County Recorder's Office was just nerved there will be an investigation of the troubled Presidential Preference election. Joining us now is Joe Kanefield, former state elections director and President of Ballard Spahr. Were you surprised at the DOJ's decision to look into this?

Joe Kanefield: Not really. Remember the letter expressing concernings about the election, and he specifically asked about whether or not there were issues with minority voting. That's a red flag for the Department of Justice.

Ted Simons: So the Mayor's letter did have an impact.

Joe Kanefield: I think so. I'm sure there were others that wrote to the department, as well. But that's what the department does. This letter came from the head of the voting rights section for the entire Department of Justice so this is serious.

Ted Simons: And the Civil Rights Division looking at this, what exactly will the Civil Rights Division look at?

Joe Kanefield: They will be looking at whether or not there was a violation of section 2 of the Voting Rights Act. As least as best I can tell from reviewing the letter. Section 2 says any voting practice or procedure that discriminates against minority voters based on race, color or language is going to be a violation of the law. This is grounded in the 5th Amendment which preserves the tort vote for minority members. That's what they are looking for, to see if there was any kind of discrimination that inhibited or prevented minority voters from effective casting their vote at the Presidential Preference election.

Ted Simons: Are we talking intentional discrimination, accidental discrimination or it doesn't matter?

Joe Kanefield: It doesn't matter. The test is intentional, definitely a violation. It doesn't necessarily have to be intentional. As a result of the practice, if the effect was discrimination, that itself is a violation of section 2 of the Voting Rights Act.

Ted Simons: There were a number of things mentioned in the letter they wanted to see. They want information regarding a couple of them here, procedures for determining polling place agents reasoning for reducing the number of those polling places. Why ask that?

Joe Kanefield: It's probably getting to purpose, just like you said. They want to know if -- what the reason was for reducing the polling places from the last Presidential Preference election. They want to make sure it wasn't done intentionally in any kind of effort to discriminate or inhibit the ability of minority voters to vote. I don't think that's the case but of course them to do their due diligence and make sure. It doesn't matter, fit wasn't intentional, if they find the effect is the same there is a violation.

Ted Simons: We've asked a great number of people from Helen Purcell on down why were these polling places selected out of 60. And no one seems to have an answer. Someone somewhere had a table, a metric that said that one, that one, that one, don't you think?

Joe Kanefield: I've worked with the Maricopa County Election Commission, Helen Purcell, Karen Osborne, they are very good at this, they take this very seriously. They have run dozens and dozens of elections. I'm certain they made an effort to make sure they were appropriately placed. Finding locations can be a challenging task. Not everyone wants to lend their facility out for voting. It creates parking issues, schools and churches and other things. I'm sure even if they had a list of ideal polling locations they may not have been able to get everyone they wanted.

Ted Simons: I know the Civil Rights Division was also looking at provisional ballots. I'm guessing 80% wound up being invalid because there was not a registered party, being invalid. That's something to look at too.

Joe Kanefield: I'm not sure what the angle is there, unless they determine that provisional ballots cast by minority voters were disproportionately denied compared to nonminority voters. They will not just look at policy, they will really, best I can tell, look specifically at the impact on minority voters and that's what they are going to be --

Ted Simons: Is it minority voters? I know the mayor was concerned with older folks, disabled folks, others who may have been somehow compromised in their efforts to get to vote.

Joe Kanefield: The mayor, Mayor Greg Stanton did raise those questions. He also asked about provisional ballots, and rejection, and then was concerned about the law that prevents people from handling voter ballots.

Ted Simons: The ballot collecting.

Joe Kanefield: Thanks. I'm not sure if those are specifically what the Department is looking at in terms of their review. Like I said, to me there could be federal issues with access for the disabled and others and the he would limit and there's even questions about whether those polling places were adequately staffed with bilingual workers, that is in there to.

Ted Simons: Yes.

Joe Kanefield: The best I can tell, I think this letter is focused specifically on section 2. Keep in mind, the Department of Justice has been more active in pursuing potential section 2 litigation following the Shelby county decision by the U.S. Supreme Court which effectively ended the section 5 requirement as you recall, before that decision any voting practice or policy in Arizona had to be pre cleared or approved by the Department. That's no longer the case. If that had been the case then this polling design or plan for the Presidential Preference election would have had to have been preapproved by the department. They didn't have the opportunity to do that. They would have asked a lot of the same questions they are asking now through that pre clearance process.

Ted Simons: You think the preclearance process would have kept a lot of this trouble from happening?

Joe Kanefield: Well, I don't know. I know they certainly would have looked at where the precincts or the polling places that were planned to be in the locations where there was a pre dominant number of minority voters. They would have asked whether there were sufficient polling places, bilingual workers and access. If they didn't think there was they would have deny preclearance or asked for a different --

Ted Simons: What would the Justice Department do with the information, and what's next?

Joe Kanefield: They will review whatever Maricopa County provides along with any other information gathered through this process. If they determine there's a violation usually how they pursue these is they sue under -- in federal court. Oftentimes this results in consent agreements so there's a quick settlement of sorts, where the County would agree to how -- a process in the future for making sure these things don't happen. Or if the County denies the claims it would be a full-blown section 2 lawsuit that would make it all the way to final judgment.

Ted Simons: Good information, thanks for joining us.

Joe Kanefield: Thank you, Ted.

Joe Kanefield: Former State Elections Director and Partner at Ballard Spahr

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