The process for handling ballot challenges depends on if the challenge pertains to an early ballot or a voter casting an Election Day ballot. While these processes can create logistical pressure prior to a vote being tabulated, in both cases, only ballots that survive challenges are tabulated.
Arizona provides for “limited statutory grounds for challenging a voter” during early voting. [1] *2023 EPM* at 79. The only individuals that can challenge an early ballot are partisan observers. 2023 EPM at 79. A challenge must include a brief statement on the grounds of the challenge. 2023 EPM at 79.
Challenges to early ballots can only be made during a specific window in the process. If a challenge is received before the early ballot is returned or after the affidavit envelope containing the ballot has been opened, the challenge will be “summarily denied as untimely.” 2023 EPM at 79. If a challenge to an early ballot falls into one of the limited statutory grounds (person is not a qualified voter or has already voted in the election) for filing a challenge and the challenge is timely, the written challenge is given to an Early Ballot Board (i.e., an inspector and two judges) or the County Elections Director. [2] A.R.S. § 16-591; 2023 EPM at 80.
After the written challenge has been submitted to the Early Ballot Board or the County Elections Director, either that board or the County Elections Director must mail (using First-Class Mail) notice to the challenged voter within 24 hours. [3] Notice must also be sent to the county chairperson of every political party represented on the ballot. 2023 EPM at 81.
The County Recorder or the County Elections Director is responsible for designating at least one Early Ballot Board (i.e., an inspector and two judges) to process early ballot challenges. 2023 EPM at 81. Hearings to make a determination on a challenge to an early ballot cannot be scheduled less than 96 hours after the notice to the challenged voter is mailed, nor sooner than 48 hours after delivery if the notice is delivered by overnight or hand delivery. 2023 EPM at 81. Challenge hearings, however, must take place before 5 p.m. on the Monday following the election. 2023 EPM at 81.
At challenge hearings, challenged voters are provided with an “informal opportunity” to provide a brief statement regarding the challenge. However, a decision to not provide such a statement or to not attend the hearing cannot be deemed an admission of the validity of the challenge. 2023 EPM at 81–82. The Early Ballot Board has the discretion to ignore comments from individuals other than the challenged voter, the challenger, political party designees, or legal representatives of these individuals. *2023 EPM* at 82. Ultimately, the burden of proof is on the challenger to show by “clear and convincing evidence” that the challenged voter’s early ballot should not be counted. 2023 EPM at 82.
If the challenge is rejected so that the vote is allowed, the Early Ballot Board opens the envelope containing the ballot in a way to prevent the affidavit from being destroyed. 2023 EPM at 82. The Early Ballot Board then removes the ballot without unfolding or opening it, and then records the voter as having cast a ballot. 2023 EPM at 82.
If the challenge is accepted and the vote is not allowed, the affidavit envelope containing the early ballot is not opened. 2023 EPM at 82. The Early Ballot Board then writes the grounds for rejecting the ballot across the early ballot envelope. 2023 EPM at 82. The affidavit envelope and its contents are preserved along with the official returns. 2023 EPM at 82.
If the challenged voter does not attend the challenge hearing, within three days of the determination the Early Ballot Board sends the voter a notice, via First-Class Mail, informing them whether their early ballot was allowed to be cast. 2023 EPM at 82. If the early ballot was not allowed to be counted, the notice will provide the grounds for that determination. 2023 EPM at 82. Unless the challenge is part of a statewide election contest pursuant to A.R.S. § 16‑672, the Early Ballot Board’s rejection of an early ballot challenge is final and cannot be appealed. 2023 EPM at 82.
On Election Day one voter, or a partisan observer, can orally challenge another voter’s eligibility to cast a ballot. 2023 EPM at 194. The challenger must be able to show “by clear and convincing evidence” that: 1) the voter has already voted in the election (A.R.S. § 16-591); 2) the individual attempting to cast a ballot is not in fact the person in the signature roster or e-pollbook that they say they are (A.R.S. § 16-121.01(B)(1)); 3) the voter has not resided in the relevant local jurisdiction for at least 29 days before the election (A.R.S. § 16-121.01(B)(2)); 4) the voter is registered at an address that is not permitted for registration purposes (A.R.S. § 16-121.01(B)(3)); or 4) the voter is otherwise not a qualified elector (A.R.S. §§ 16‑101(A), -121.01(B)(4)). *2023 EPM* at 194. Individuals that initiate “frivolous … or repeated challenges based on invalid grounds” may be removed from the voting location to prevent harassment and intimidation of voters. 2023 EPM at 194, n. 83.
Individuals are “presumed to be properly registered to vote on completion of a registration form,” and the “burden of proof is on the challenger to show by clear and convincing evidence why the voter is not eligible to vote.” *2023 EPM* at 194. The EPM explains to election officials that this evidence standard is “a heightened standard of proof that requires more than the preponderance of the evidence standard used in civil proceedings.” Furthermore, the challenger must prove “sufficient, individualized facts to establish that a conclusion is highly probable or reasonably certain.” 2023 EPM at 194. Finally, challenges that are not based on a “statutorily-authorized ground for the challenge may be summarily dismissed.” 2023 EPM at 194.
Challenges based on “statutorily-authorized” grounds are decided at the voting location by the inspector and two judges. 2023 EPM at 195. In these cases, the inspector has the voter step aside so that other voters in line may continue voting while the challenge is processed. 2023 EPM at 195. At that point, if the challenged voter requests so, the inspector must provide them with the rules for determining residency. [4] *2023 EPM* at 195.
Challenged voters have the option, but not the obligation, to answer questions relevant to the challenge under oath. 2023 EPM at 196. Only the inspector can address these questions to the challenged voter. 2023 EPM at 196. If the challenged voter appears to be registered, they must take an oral vote swearing or affirming that the information in their voter registration is correct, that they are a resident of Arizona, they have not been convicted of a felony (or their civil rights have been restored), and they have not been adjudicated as incapacitated (or their voting rights were restored). 2023 EPM at 196.
If a majority of the Election Board (i.e., the inspector and two judges) finds the challenge to be invalid, the voter must be allowed to vote a regular ballot (if they are otherwise eligible to do so). 2023 EPM at 196. If the challenged individual refuses to take an oath, refuses to answer questions relevant to the challenge, or a majority of the Election Board finds that the challenge is valid, the challenged voter must be allowed to cast a provisional ballot. 2023 EPM at 196.