Judge Denies Team McSally's Motion, Allows Vote Count To Continue in Hotly Contested Barber-McSally Race

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A Pima County Superior Court judge has denied an effort by Republican Martha McSally’s congressional campaign to stop counting a group of ballots in Democratic precincts in her hotly contested race against Democratic incumbent Ron Barber.

Superior Court Judge James Marner said that he would not issue a temporary restraining order or preliminary injunction to stop the count of provisional ballots that were missing a signature from a poll worker.

The race remains extremely tight, with McSally leading Barber by 341 votes.

County officials say there are an estimated 9,300 provisional ballot awaiting tabulation in Pima County, where Barber ran ahead of McSally. An unknown number are in Congressional District 2.

Pima County Election Director Brad Nelson said ballot counting would resume this afternoon but he did not expect the complete the count of the provisional ballots.

Lawyers for both campaigns, as well as a deputy county attorney, were in court this morning to debate whether the questioned ballots should be set aside until a substantive argument could be made as to whether they are valid.

Attorney Dan Barr, representing the Barber campaign, said that the voters’ ballots shouldn’t be tossed aside based on a technical error.

Barr said the question was whether the court should “toss aside a voter’s ballot when they didn’t do anything wrong. They did everything they were supposed to do … and because of some technical error, we’re not going to count their vote.”

Deputy County Attorney Daniel Jurkowitz said that if these sorts of challenges regarding minor technical errors were regularly entertained, then elections would never be resolved.

“There’s no such thing as a perfect election,” Jurkowitz said.

Attorney Brett W. Johnson, representing the McSally campaign, said that an elections manual distributed by the Arizona Secretary of State’s office did include a provision that stated that administrative errors are grounds for disqualifying ballots.

But other sections of the manual conflicted with that rule and Secretary of State Ken Bennett testified that that were other safeguards to ensure election integrity beyond the signatures on the forms.

Marner said the election manual was “a bit of a head scratcher” but expressed his judgment that the McSally legal team was not likely to prevail on the merits of its case, so he would not grant their request to stop the counting of the questioned ballots.

The underlying question as to the validity of the ballots remains unresolved.

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