SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
and if further attempts at a tabulator reading a ballot are unsuccessful, then a human being manually reviews the ballot to determine voter intent and count the ballot ("Adjudication"). Drobina objects to a human review of his ballot as inferior to a machine review.
Drobina acknowledges that he did in fact receive confirmation on the County Recorder's website that his ballot had been counted. (Exh. "3".)
The evidence established that any number of issues may cause a tabulator to not be able to read a ballot, including stray marks, overvotes,[1] blanks, unclear marks, tears, wrinkles, stains, or other damage. (E.g., Exhs. "51" and "24".) If this occurs, the voter is given the option to "spoil"[2] her ballot and cast a new ballot, or she may decline to spoil her ballot and choose instead to let the original ballot go forward as is. (Exh. "51".)
Drobina complains that he prefers that a tabulator machine, rather than a human, reads his ballot and he asserts that Arizona law requires that to happen as Arizona uses tabulator machines. There is no contention that a human reviewing a ballot would ever know who cast the ballot as the parties all agree that a ballot contains no information as to the voter's identity, consistent with Arizona law requiring that ballots be secret. A.R.S. § 16-446(8)(1). Consequently, once a ballot has been cast, given the absence of any voter identification information on a ballot, the ballot cannot be "married" to, or tied back to, a specific voter. No party disputes this fact which the evidence established fully. Thus, it is physically impossible to locate, for any purpose, the ballots that were cast by Aguilera and Drobina on 11/3/2020.
In the normal course, Arizona law provides for ballots that cannot be read by tabulators for various reasons to be "adjudicated" by humans. An alternative to such human involvement is of course that a ballot which the machine cannot read will simply not be counted. That result disadvantages everyone, primarily the disenfranchised voter, but also the electorate, the candidates on the ballot, and the election process. Plaintiffs assert however that "[h]uman beings are by nature fallible and imperfect" (Complaint ¶ 4.14) and therefore inferior to machines, which Plaintiffs assert are infallible and "perfectly accurate."
The Court further finds no evidence established that machines are infallible or perfectly accurate. In fact, Plaintiffs' assertions in this respect are starkly disproven by the very events that bring Plaintiffs to this Court, i.e., Plaintiffs' claims that the ballots they completed and cast could not be read by the tabulator machines into which Plaintiffs inserted their completed ballots. Either Plaintiffs marked or handled their ballots in a manner that caused the tabulators to
- ↑ An "overvote" results when a voter marks more votes than allowed. (Exh. "51".)
- ↑ A "spoiled" ballot is one a voter chooses not to have counted. (Exh. "51".)
ballot back out of the machine to the voter. The voter then could opt to spoil his ballot or have it fed into Drawer 3, also referred to as the "misread bin" by witness Joshua Banko, a former Elections Department clerk.
