Are You There? Can You Hear Me? I’m Trying To Vote: Voting by Video Under Review

By Drew Kudlinski.

COVID-19’s legacy will likely be the all-touching and absolute disruption to normal life. That disruption has not been isolated from the core of our democratic process. While uncertainty reigns supreme in 2020, it is certain that a massive surge of alternative voting is coming in the November general election. More Americans will cast their ballot without visiting the polls than ever before. This has spurred election litigation across the country. Policymakers, election administrators, advocates, and judges have sparred constantly over the year regarding how to best ensure an accessible and legitimate election during a public health crisis.

Both national attention and litigation has been primarily focused on mail-in voting. Mail-in voting will have a crucial role in this year’s election. For example, half of Georgia’s primary voters were absentee this year, compared to 5 to 7 percent normally. But there are other interesting questions on voting access that will be answered. A recently filed complaint in Arizona state court seeks to verify the legality of a technologically novel vote-casting method.

“FaceTime” by Travis Isaacs is licensed under CC BY 2.0

 

The Maricopa County Recorder, Adrian Fontes, filed a lawsuit on September 25 seeking to have a judge rule that a special county policy allowing voters confined to hospitals and nursing homes to vote by video call is legal.The lawsuit comes in anticipation of a possible opposing suit after Arizona Governor Doug Ducey wrote a letter to Arizona Secretary of State Katie Hobbs asking that elections officials suspend the policy.

Maricopa County’s Video Voting Policy

The policy was developed under Arizona statute § 16-549, which provides for the creation of special elections boards (SEB) to help disabled or ill voters cast their vote. The SEB is a two-person board, comprised of one member from each major political party to ensure bipartisanship. Under the policy, the SEB coordinates with hospitals and nursing homes to identify voter interest and eligibility. After identifying those eligible to cast votes via video, the board determines if the voter needs to have a device transported to them. The SEB will identify the appropriate ballot for the voter and arrange an appropriate date and time to conduct a video conference call. The SEB will be physically located in a confidential space.

During the call, the SEB will contact the voter and identify themselves. They will then ask for the required voter identification and explain to the voter the process of voting by video. The SEB will read each office and candidate name on the ballot, stopping after each office and asking the voter for their selection. They will then direct the picture towards the official ballot as proof that the correct choice was marked. After selecting a candidate for all offices, the SEB will read all offices and confirm the voter’s choice. The SEB will then place the ballot in a sealed affidavit, marking that the voter is unable to sign because of COVID-19 rules. The board will then ensure the affidavit and ballot packet are processed.

Arguments for and Against the Policy

In his complaint, Fontes argues that the policy is legal under both federal laws and Arizona state laws protecting disabled persons’ rights to vote. Fontes cites Arizona statute § 41-1421 which states “[a] qualified individual with a disability shall not be excluded from voting or be discriminated in voting under this section by reason of the disability.” Fontes then cites federal law with Title II of the Americans with Disabilities Act, which provides that no disabled individual shall be excluded from participation or be denied the benefits of public services, programs, or activities. This includes voting. Fontes bolsters his argument by citing the Voting Rights Act of 1965 which provides that voters in need of assistance due to disability may be given assistance by a person of the voter’s choice, subject to some limitations.

Finally, Fontes argues that the policy developed by the County Recorder was authorized under the statutory language of the earlier mentioned § 16-549. The complaint highlights that the video procedure follows similarly to early ballot voting with some differentiation. Fontes further argues that early voting statutes contemplate the need for voter assistance and emphasizes the inclusion of the affidavit as securing compliance with Arizona election law and legitimacy for the vote.

Governor Ducey questions the legality of the policy under Arizona law. Although no reply to the complaint was filed at the time of writing, it is likely that arguments against the policy would mirror most arguments against expanding access to voting that have been echoed throughout court rooms this year. The first argument would likely be that the policy is beyond what § 16-549 permits the County Recorder to do in providing access to the ballot. The precise language of §16-549 states that the voter must “hand” the marked ballot in the sealed envelope to the SEB. Construed textually and narrowly, that could exclude the vote by video method. The second argument is likely that the policy would allow for increased voter fraud. President Trump has led a largely partisan effort to discredit mail-in voting as illegitimate and rife with fraud. A challenge to this policy would likely mirror the same concerns.

Why This Case Matters

In terms of actual votes at stake, the impact of this suit is extremely limited. The County Recorder has only identified ten voters that requested special assistance. Neighboring Pima County developed a similar policy which will likely stand on the outcome of this suit. But there are larger considerations at play than the immediate effects. An attack on one voter’s rights is generally viewed as an attack on the voting principles of the country at large. The suit may test the strength and flexibility of both Arizona state and federal voting protections.

The policy, if Fontes is successful, could provide a trial run for an alternative voting method made available by contemporary technology. This would join efforts by other jurisdictions to expand access to voting by utilizing 21st century technology as a medium for the democratic process. Although the effort is a small one, proving that it is feasible at least provides some empirical evidence to support a larger discussion regarding voting reform through technology in Arizona.

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By Drew Kudlinski.

J.D. Candidate, 2022

Drew is a 2L Staff Writer from Gilbert, Arizona. He graduated summa cum laude with a Bachelor of Science in Finance from Arizona State University and stayed home to pursue his J.D. at Sandra Day O’Connor. During law school he has interned with the Arizona Attorney General’s Office and the U.S. Attorney’s Office. In his free time Drew enjoys playing golf, finding a good beer, and the pain and suffering of being a lifetime Arizona Cardinals season ticket holder.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.