Rebekah L. Sanders

The Republic | azcentral.com

The state's first-ever congressional recount begins this week in the nail-biter race between Republican Martha McSally and U.S. Rep. Ron Barber, D-Ariz.

McSally leads by 161 votes out of more than 219,000 cast in southern Arizona's 2nd Congressional District, a margin so narrow it will trigger the recount once Secretary of State Ken Bennett certifies the canvass. He is scheduled to do so Monday.

Barber sought to cut into McSally's lead ahead of the recount by challenging election officials' rejection of 133 ballots in Pima and Cochise counties.

But on Thanksgiving Day, a Tucson federal judge denied the campaign's request to count the ballots, a development that one expert says bolsters McSally's likelihood of victory.

Rebecca Green, co-director of the Election Law Program at William & Mary Law School, has said that whoever is leading going into a recount has a huge advantage.

"They are trying to jockey to get as many votes as possible before the recount," Green said last week as the Barber campaign filed its lawsuit.

Though Barber's lawsuit would not have given him the lead if it had been successful, it would have diminished McSally's edge.

Barber attorney Kevin Hamilton argued in court that the 133 voters were disenfranchised for reasons such as going to the wrong polling place and having their signatures on ballot envelopes ruled invalid.

"These voters have been stripped of their right to vote," Hamilton said.

He estimated that re-examining the ballots would take county officials only one workday, allowing Monday's scheduled canvass to go forward as planned. He sought to delay the canvass in the event the scrutiny took longer.

State and county elections officials, however, said reviewing the ballots would take days, as verifying ballots is complex work and many agency workers would have to be recalled during their Thanksgiving vacation.

Officials argued against delaying the state canvass and recounting the votes, because it would impact other races, as well.

The downtown Tucson courthouse, where the hearing was held, was a reminder of the tragedy that propelled Barber into office.

In that same building in 2012, Jared Loughner pleaded guilty to killing six and wounding 13 in a mass shooting at a grocery store just north of the city.

The assassination attempt at a constituent event severely wounded then-U.S. Rep. Gabrielle Giffords, ultimately leading to her resignation. Barber, a top aide to Giffords, was shot twice in the attack. He was elected to replace her.

McSally ran that year and lost. She returned in 2014 for a rematch with Barber.

McSally attorney Eric Spencer argued in the Wednesday hearing that some of the ballots in question would be ineligible for additional reasons, pointing out that two of the voters live in a different congressional district.

He said county officials pored over the votes and determined that they should not be counted based on state law. "(There was) an incredible amount of due diligence before those votes went uncounted," Spencer said.

Bennett, the state's top election official and a Republican, asked U.S. District Judge Cindy K. Jorgenson why the rejected ballots identified by the Barber campaign should be reviewed and not the rest of the roughly 800 rejected ballots.

He and McSally's attorney argued that the campaign likely singled out those ballots because the voters likely supported Barber.

Jorgenson said the lawsuit constrained her to focus on the rejected ballots that the Barber campaign had highlighted.

Tucson voter Lea Goodwine-Cesarec, 81, who supported Barber on Election Day but had her ballot rejected because she voted at the wrong polling place, attended the court hearing. She was one of the 133 voters named in the suit.

Goodwine-Cesarec said that she went to the polling location where she was told to vote and that poll workers never raised a red flag.

"I expect my vote to be counted," she said. "I did everything I was supposed to do."

The Barber campaign went to court after Pima and Cochise counties turned down its requests to delay certifying votes in order to examine disputed ballots.

In the judge's decision — handed down surprisingly at about noon on Thanksgiving Day — Jorgenson said the court was sympathetic to voters whose ballots may have been improperly rejected.

But Barber's campaign failed to prove that the discounted votes would undermine the integrity of the Nov. 4 election, Jorgenson wrote. She said the campaign's allegation that not issuing a restraining order would lead to "irreparable harm" was speculative.

"Even if all 133 votes are counted, it is undisputed that Martha McSally wins the election because she leads by a margin of 161 votes at this time," Jorgenson wrote.

Jorgenson said the hardship to the secretary of state and voters in the 2nd Congressional District outweighed the hardship to Barber's campaign.

A spokesman for Barber expressed disappointment.

"While we are disappointed in the court's decision, we remain committed to ensuring that southern Arizonans are able to trust the integrity of this election, and we thank the voters who not only took the time to vote in this election, but who came forward to ask that their voices be heard," campaign manager Kyle Quinn-Quesada said in a statement.

Quinn-Quesada did not say if the Barber campaign planned to appeal but that they were looking forward to the recount.

The Associated Press and Arizona Republic reporter Rob O'Dell contributed to this article.

Winding path to a winner

Nov. 4: The Election Day tally shows the race between Republican Martha McSally and U.S. Rep. Ron Barber is too close to call given the number of uncounted ballots.

Nov. 6: McSally clings to a roughly 2,000-vote lead over Barber with a few thousand votes to be counted in Cochise County and about 47,000 left in Pima County.

Nov. 12: As counting winds down, Pima County officials say they have found an additional 213 uncounted ballots in unopened envelopes.

McSally's lead dwindles to 161 votes, triggering the state's first-ever general-election recount of a congressional race. A mandatory recount occurs if a candidate wins by fewer than 200 votes.

Nov. 18: Lawyers for Barber's campaign ask Pima County to delay finalizing its vote count. The campaign says it has sworn statements from 132 voters who say they were disenfranchised by poll-worker errors. Pima County rejects the request.

Nov. 21: Cochise County denies a similar request from Barber's campaign, which sought to have officials examine 20 ballots that were invalidated.

Nov. 24: Barber files suit in U.S. District Court, asking that officials count the ballots of 133 voters his campaign contends were disenfranchised. The lawsuit seeks to stop the state from certifying the results of the election on Monday until the ballots are re-examined.

Nov. 27: U.S. District Judge Cindy Jorgenson denies Barber's request to halt the official election results certification, allowing Monday's scheduled canvass to proceed.