Margaret R. Mahoney

“ 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. ”

“ Permit each elector to vote at any election for any person for any office whether or not nominated as a candidate, to vote for as many persons for an office as the elector is entitled to vote for and to vote for or against any question on which the elector is entitled to vote, and the vote tabulating equipment shall reject choices recorded on the elector's ballot if the number of choices exceeds the number that the elector is entitled to vote for the office or on the measure. ”

“ 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." ”

“ However, because, as all parties agree, it is impossible to associate a ballot, once cast, with any specific voter, neither Plaintiff could have watched her/his own ballot being processed or adjudicated. Furthermore, the Court finds Plaintiffs did not establish that the public website fails to satisfy the Electronic Adjudication Addendum § (D) (1) requirement that adjudication be "open to public viewing".
In the Motions to Dismiss, Defendants and Intervenor contend that the Complaint should be dismissed under the doctrine of laches. The Court disagrees. ”

“ The tabulator did not automatically accept Drobina's completed ballot the first two times he inserted it into the tabulator and therefore, he deposited his completed ballot into Tray 3 of the tabulator. Ballots from Tray 3 [6] are processed later 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. ”

“ Further, Aguilera also testified that even if her ballot was in fact counted, but was counted by a human being rather than a machine, she would not be satisfied because she has "no way of verifying that."
Plaintiff Drobina described a different scenario. Drobina acknowledges that he cast his ballot in person at the polls on Election Day at Arrowhead Town Center in Glendale, but the "tabulation machine ['tabulator'] was unable to automatically read and tabulate his ballot with perfect accuracy as the law required." (Id. ¶ 1.3.) ”

“ Banko contends that he could see, often from a distance, that there were no extraneous votes or lines on the ballots and that the bubbles seemed to be filled in completely and appropriately by the voters who nevertheless were having issues. Banko also assumed he knew which portions of the voters' ballots allowed one or more votes because he himself lived "in proximity" to this polling location and many of the voters' residences were also "in proximity" to this site. ”

“ The Court further finds Plaintiffs' failure to establish the core premise of their Complaint—that machines are always infallible and perfect, and that the law requires same—defeats Plaintiffs' claim that they were deprived of a perfect process when the tabulators could not read their ballots automatically and with perfect accuracy. ”

“ 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. ↑ 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".) ↑ Plaintiffs both testified that they completed their respective ballots perfectly, dismissing the possibility that anything they may have done or not done to their ballots caused the problems they experienced. ”