What You Need to Know About Arizona’s Election Day ‘Sharpiegate’

Rachel del Guidice / November 05, 2020

Laurie Aguilera says her polling place gave her a Sharpie marker to fill out her ballot on Election Day in Maricopa County, Arizona, despite what her lawyers call state guidelines directing that “felt-tip writing utensils not be used.”

Ink ended up bleeding through Aguilera’s ballot and election officials would not accept it. The Public Interest Legal Foundation filed a lawsuit on her behalf, “requesting restoration of ballots for voters who were told to fill out their ballots using Sharpie markers but subsequently had those ballots canceled.”

Many voters are concerned about election fraud and how ballots are being counted in the wake of the close presidential election between Donald Trump and Joe Biden. Should voters be concerned about election results being illegitimate or significant fraud occurring?

Logan Churchwell, spokesman for the Public Interest Legal Foundation, joins the podcast to discuss.

Editor’s note: After the podcast was recorded, the Arizona attorney general tweeted this:

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Rachel del Guidice: I’m joined on “The Daily Signal Podcast” by Logan Churchwell. He’s the spokesman for the Public Interest Legal Foundation. Logan, it’s great to have you with us on “The Daily Signal Podcast.”

Logan Churchwell: Thank you for having me.

Del Guidice: So, while votes are still being counted and we still don’t know who the next president will be, your organization filed a lawsuit requesting restoration of ballots for voters who were told to fill out their ballots using Sharpie markers, but subsequently had those ballots canceled. So, Logan, first off, can you walk us through what happened with this alleged situation?

Churchwell: Sure. In Maricopa County, [Arizona], we started hearing results, some from our local council and others just from concerned voters, saying, “I’ve been voting in Maricopa in person my whole life and for the first time ever, they handed me this Sharpie. And that didn’t seem right. And I voted my ballot as normal anyway, and when I went to go feed the ballot into the optical scan machine, it started spitting back errors and could not read the ballot.”

And then it becomes a rush home to figure out why? What happened? And eventually, what we’ve learned is this, across an unknown number of in-person polling locations around Maricopa County, instead of using traditional ballpoint pens of a specific ink color, which standing Arizona procedure says clearly you should be using ballpoint, not a felt-tip pen, Sharpies were handed out exclusively.

Now, whenever you use a Sharpie on a ballot, at least with that weight of paper, you run the risk of the ink bleeding through the other side. And you might wonder, “Well, that’s not a big deal,” but here’s the problem: These optical scan machines are incredibly sensitive.

They are calibrated to look in specific places of the paper. And if ink shows up in places where it is not supposed to be, it reads an error and might even read an error in terms of an over-vote, a person voted for two candidates in the same race, can’t have that happen.

So our plaintiff, and others like her, have come forward and said that whenever they went and they handed in their ballot for processing, it spit it back, the error message, even despite the fact that they said, “Look, I don’t think you’ve ever given me a Sharpie before. Are you sure we should have done that? Can I just start over with a pen? Look, I’ve got one in my purse.”

They were told, “No, you don’t get a second shot at this. And we’ll take care of this issue later.”

Some people were told that their ballot was going to go on to some review board. Others were told that the ballot was going to go on the provisional ballot pile, probably the last place you want to be in any given election. And others were just [told], “OK, we’ll take care of it. Just go on home. But you don’t get a second shot.”

Here’s the problem with Arizona. Arizona law says that you have a right as a voter to be treated to a uniform process of your ballot being handled. And the way they live in to that process, of that uniform promise of process, is to have an electronic counting machine.

That means you feed your ballot through, it counts it, everyone goes on with their lives, not giving someone a writing utensil that may or may not trip up the process and then hand over to a human review board later on, especially if we’re seeing an unforced error in terms of handing out Sharpies.

Now, if these were just random people that were scared to death of COVID and brought their own marker with them and it wasn’t what they should have used and they did it anyway, then we would have a much different story here.

But the fact that the county handed out these markers this way, despite instruction saying we should be sticking with ballpoints—we have an unknown number of ballots effected coming out of an unknown number of precinct locations effected.

Top all of that on the fact that the Arizona Attorney General’s Office is now investigating Maricopa County along these lines. We’ve got a very important case here and really, we have voters that just want to know that their vote was counted. And if need be, be able to come back, start over, vote again, and make sure that their ballot was counted correctly once and for all.

Del Guidice: Well, you all filed a lawsuit. Can you tell us about what your lawsuit says?

Churchwell: The complaint itself, it’s an eight-page lawsuit. It’s worth a read, actually, because we’ve written this in a way to where you do not have to be an election lawyer to understand the facts of the case here.

And that’s important to us because one of our missions as the Public Interest Legal Foundation is to help people make sense of election law because it can be incredibly confusing. Whether you’re just looking at legal opinions, lawsuits filed, or even listening to election officials, it can sound like they’re speaking at a different English dialect and be very confused.

So our case also tells the story of this one woman and others like her who knew something was wrong as soon as she was handed a Sharpie, followed instructions anyway, used it, had her ballot spit back that could not be processed once she handed it into the counting machine, and then was told, “Don’t worry about it, go home. We’ll sort it out later.”

And people were told different messages as they were sent home. Either, “Don’t worry, it’ll eventually count,” or, “It’ll go provisional,” or something.

So the lawsuit asks for several simple things. Let the plaintiff know what happened to her vote. If the ballot is unreadable, let her come back and vote a brand new fresh ballot, trash the old one. Don’t put it up to a human committee because Arizona law is clear that she has a right to a uniform counting process, just like the person in front of her and behind her in line whose ballot for some reason didn’t have a problem.

And that’s the other issue here, is that you’re not guaranteed to see your ballot fail because you used a Sharpie. But for some reason, some Sharpie-used ballots failed upon handover and others didn’t. When you have that uneven treatment, you have the issues of equal protection and the list goes on.

All we’re looking for is people to be able to ensure that their vote was counted, even if that includes having to re-vote and watch the ballot be handled accordingly to law.

Del Guidice: USA Today did a fact check and reported that this incident was “unfounded,” and that Arizona’s Maricopa County prefers Sharpies to use since they dry faster. And then USA Today came to say that they ultimately believe there’s no evidence that tabulating machines in Arizona can read ballots filled out with a Sharpie.

Logan, what is your response to this?

Churchwell: I would echo the concerns that the Arizona Attorney General’s Office is having and opening an investigation into Maricopa County, an investigation that is supposed to be responded to and complied with by today.

Last night, the Arizona AG’s office wrote a letter laying out several parameters for investigation. And I’m paraphrasing the lines of inquiry here, but in essence, the attorney general wants to know from Maricopa, how many polling locations were exclusively handing out Sharpies to mark up ballots?

Two, what is the breakdown in terms of ballots that have been received that were used by a traditional pen versus a felt-tip pen? Three, how big is the stack of ballots that had a problem in the counting machine that is supposed to go to a review board?

So these are relatively simple questions, logical ones you would ask. And for the Attorney General’s Office to be stepping in says a lot in the face of what fact-checkers might say.

And in essence, what we’re seeing is a circling of the wagons around Maricopa County. We’ve seen Pima County and others say that, “It’s OK. There’s nothing to be worried about here, nothing to see here.”

But at the same time, Pima County is publishing instruction saying, “Don’t use a felt-tip pen when you mark up this ballot, please and thank you.” So we have conflicting instructions and changing stories between election officials.

Plus, you have a history of this Maricopa County elections office having trouble in the past when it comes to last-minute polling place closures and just any polling place process breakdown in the 2018, the 2016 election, and in primary elections they’re in. This has been an embattled elections office for years now.

And it’s culminated into this, where we’re talking about Sharpies in a presidential election. But that’s what happens whenever elections offices are not held to account. It leads to lawsuits where we’re saying terms we’d never think we’d have say. But that’s where we are right now.

Del Guidice: You also have a lawsuit in Pennsylvania. Can you tell us about that?

Churchwell: This lawsuit in Pennsylvania is a totally different species of lawsuit. In essence, this is a federal case whereas the Maricopa case is in state court.

This is a federal lawsuit filed against the Commonwealth of Pennsylvania, the Department of State, and the fact pattern is this: The Pennsylvania voter roll is not in the greatest of shape, and especially for a state that it was pushing so much of its electorate into the mail-voting process.

Now, mail ballots come with their own issues, whether it’s issues of transmission and delivery, getting lost somewhere there in, the ballots being delivered to the wrong house and being voted in properly.

Those issues with mail voting are there, but the root cause of so many of all mail-voting issues actually has to do with voter registration records themselves. You have to make sure that the address that you’re putting the mail ballot in the mail to is the correct one and that person is still alive.

And in Pennsylvania, over the past several months, Public Interest Legal [Foundation] took it upon itself to audit the voter roll for very specific issues. And the biggest one was how many people are dead, but still registered to vote in Pennsylvania.

And shortly before the election, we alerted the state and said, “Look, we’ve got 21,000 dead people on the voter rolls. And here’s the issue, these guys didn’t die last week, you missed them years ago and they keep paying on the voter roll. You need to be very careful and make sure that either you’re not sending ballots to them, or if one comes back from them, you should know that this one’s questionable because this one’s information is showing up on the Social Security death index.”

So the case that we filed there [shows] 21,000 people currently registered to vote as of days ago that are showing to be deceased, according to the federal government. And there are some more alarming numbers in here as well, if 21,000 weren’t enough.

And you might think a year ago or so, “Twenty-one thousand. Ah, that’s not that much.” Take a look at election returns right now and watch how your sense of close versus long margins tends to shrink.

So 21,000 people that are dead on Pennsylvania’s voter roll. Ninety-two percent of these folks died before October 2019—not 2020, October 2019. Ninety-two percent of all the dead registrants we found have been there for over a year.

Now, here’s where things get even more tricky. Whenever we are able to match the voter registration roll against the Social Security death index, we learn date of death, among other things. We can also learn where they died, in some cases, or at least where the last Social Security check went to in terms of ZIP code. But we learn that date of death and we compare that date of death against the voting history for that person who’s deceased.

And whenever we see voting credits issued after the date of death—and by voting credit, that is the term of art that election officials will use to say, “We say that that person voted.”

That means that either their name was checked off in a poll book or their names showed up on an absentee ballot return list. The system believes that they voted. Don’t know who they voted for, but the system believes they voted.

Right now, out of these 21,000 that were showing to be dead, we saw at least 114 instances where these folks were registered to vote after they died. And then there’s another 200-plus instances where after they died, they still managed to vote.

So we have things that are happening out of order all over Pennsylvania. People are dying and lingering on the rolls long after they should have, or more than a year-plus. We have people that died back in the 1990s that are still there.

But now, we have this other concern of more than 100 examples of people registering to vote after they died, and another 200 examples of people getting credit for voting after they died.

We’ve been, as an organization, dealing with Pennsylvania’s voter rolls since 2019, at least in court. We previously sued Allegheny County, which is Pittsburgh, which I think everyone has been sweating watching their returns come in.

There, we saw issues like deceased people on the rolls, but we also found examples of people registered in duplicate, people with variations of their name spelling, registered twice, the same house, same birth date, everything was the same.

We found one person that was registered to vote seven times over. He had seven active voter registrations. And the only difference between those seven was some had a middle initial, some had a middle name, others had no middle initial or name.

So the Pennsylvania voter roll is prone to errors, either created inside the four corners of the election office or errors outside by folks that just don’t know any better.

But you do not see basic list maintenance practices occurring either on a county level or statewide. And that’s why Public Interest Legal has previously sued Allegheny County for bad voter rolls, and right now, we’re suing the state as a whole.

Del Guidice: You mentioned your work in Arizona and in Pennsylvania. Are there any other states, Logan, that the Public Interest Legal Foundation is getting involved in? And if so, where? And is there anything else you’re observing that you might be concerned about?

Churchwell: Yes. So, we actually deployed illegal observers that had Justice Department experience and doing DOJ-style election observation. We focused them around the Detroit metro [area] on and around Election Day.

And it seemed actually to go a pretty smooth process. You did not have very long lines in the Detroit area on Election Day. We were able to catalog some issues where there appeared to be differences of opinion of how polling places should be operated inside the polls, in places like in Flint and Detroit.

But overall, we have been deploying election observers to polling locations around the country, especially areas that we were worried might have breakdowns in process, because again, you can place a good marker on where you’re going to see a breakdown in process if you look at the voter rolls first.

You might hear the saying sometimes that the past is prologue. And if you see bad voter rolls, you can start betting that months later, you can see bad election procedures occurring.

And even if Election Day is smooth, the vote-counting process can also fall down from there. And we’re seeing in these final four states here errors in vote count reporting, numbers keep changing, and that’s not something to be alarmed of and say, “I think someone’s cheating.” No. We’re dealing with election officials that are having to operate in ways that they have no experience operating before.

When you have massive amounts of mail ballots in places like Pennsylvania, where Pennsylvania is not known to have a lot of mail balloting on a regular election, you’re asking people that have no institutional experience in doing this thing to somehow get good at it overnight while the whole world is watching them, and they’re going to make mistakes. That’s just natural.

And that’s why since the pandemic came, and the lockdowns with it, and this discussion of pushing everything to the mail with balloting, Public Interest Legal Foundation has been screaming as loud as it could to say, “Don’t do this.”

Every single mistake that you might’ve noticed missed years ago is going to come back to haunt you. Ballots are going to go to dead people, they might even return from dead people. There’s going to be confusion in the handling process once those ballots come back because the voter rolls are a mess. Everything cascades into the next and the way to avoid that is to just vote in person.

And that’s been our final message here. And we’re reaping what we sow as a country. A lot of people decided to go along and try the mail voting thing, despite them not having personal experience with it and their election officials having very little as well. And this was to be expected, believe it or not.

Del Guidice: Logan, many voters right now are concerned about fraud and how ballots are being counted. Do you have any concerns about these election results being illegitimate or significant fraud that might be occurring?

Churchwell: I’m glad you asked that because I would say back from 2012 to now, the election integrity concerns and voter fraud and things like that became more and more mainstream. I mean, there’s academic research to show it, media research, you name it. But a lot more people are going to start paying attention to these issues.

And … I always caution someone if they want to become a local activist and study their local voter rolls or something like that, when you first start paying attention to this, it is human nature and it happens to so many people to start looking for the grand conspiracy. And I can tell you, you might find a small conspiracy somewhere, but for a grand conspiracy to occur to throw the election like this, as some people seem to be concerned about right now, it’s just not playing out that way.

What’s really happening is that our election systems are a mess and the mess is created in part because we have a decentralized system, we have a very localized system, and that’s something we support.

But the downside to that system is that you’re going to have messy experiences when you’re trying to work through a close race like we are right now.

And so here, if you look at this politically then for a minute, you have one side of the aisle that has been thinking about election law and process issues for generations to the point that basically election law, Senate process issues, and word choice on the left has dominated their thought.

Whereas on the right, you’ve still seen this lack of worry for the election system and greater emphasis put on having the better argument and saying, “If we just put enough money into TV ads and targeted advertising and radio and whatnot with our good message, we’re going to win people over.”

Whereas the left has understood for years now, generations even, that the process is the game. It’s the whole ball game. And so on the left, you’ve seen people that understand the mess and know how to work with the Election Day and Election Day plus two, three … weeks, what have you, mess.

And that’s why when you’ve seen the left firing off lawsuits into the lead-up to the election, they keep trying to extend deadlines because they understand how that process is going to shake out from a mechanical level. They have the personnel to work through that. They have the legal expertise in volume. They have people that are willing to go chase down mail ballots and make sure they get turned in by the deadline.

And the right has been caught flat-footed to this for years. And now, this is the big education that we’ve been warning about. You have to pay more attention to process issues. Whereas the outsider is going to look at this and think, “Whoa, this must be fraud. This must be rigged.” No, this is the way the system works.

This is just an education that you’re long overdue for, because this is the future. If you think 2020 is going to be the beginning and end of mass mail voting in places like Pennsylvania and Michigan and others, then you’re mistaken.

Pandora’s box is open now. And if majority-Democrat state legislatures and governors, like you’re seeing in Pennsylvania, see things work out for them in 2020, they’re going to solidify what they put in place in an emergency standpoint so far.

And so that leads us to where we have to go forward from here, which is what Public Interest Legal Foundation has been focused on, is sweating every election process issue, particularly the voter roll.

Because if you’re going to have more mail ballots, you need to make sure that they’re going to the right place and they’re going to be counted on time. Otherwise, we’re just going to keep repeating this experience every four years.

Del Guidice: Logan, thank you so much for being with us today on “The Daily Signal Podcast.” It’s been great having you.

Churchwell: Thank you so much.