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Early and Often 

Twenty-eight years ago, Arizona easily solved the Palm Beach County problem

Wednesday, Nov 15 2000
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In the 1972 presidential election, Arizona officials faced the same problem now focusing worldwide attention on Palm Beach County, Florida: What to do with thousands of ballots marked for two different candidates? In Pima County that year, just as in Palm Beach County this year, the problem was a confusing ballot.

But the Arizona officials decided very differently from Katherine Harris in Florida: After much wrangling and debate, it was agreed to give votes to each of the candidates marked by voters. No judge ever ruled on the wisdom of Pima County election officials, Arizona’s secretary of state or the state attorney general. They made their decision in much calmer times when the main issue was doing what was fair. The 28,000 tainted ballots made no difference to the outcome of the race: Richard Nixon trounced George McGovern in the Tucson-area precincts.

The little-known episode in American election history rings no bells for McGovern, who suspects he was never told about it because the race was so lopsided. "I can assure you if 28,000 votes would have tipped the election my way, we would have been fighting for every last vote," said McGovern, now ambassador to the U.S. Mission of the United Nations Agencies for Food and Agriculture in Rome.

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The Arizona ballot controversy wasn’t the only one that year that looks a bit like today’s Florida fiasco. In Maryland, Circuit Court Judge Harry Clark allowed citizens of one county to revote eight days after Election Day because of defective voting machines. Two voters sued when it was discovered that only 14 presidential votes had been counted on a machine used by 435 citizens at a firehouse in the town of St. Michael’s. Clark ordered the polls reopened in the Eastern Maryland precinct to protect voters’ constitutional rights. The judge now lives in a rest home and was unavailable for comment, his daughter said.

"In that era, political controversies got sorted out with more concern for an appearance of fairness," said U.C. Santa Barbara professor Richard Flacks, a nationally known political sociologist. "Elite decision-makers had more concern with establishing the legitimacy of process and institutions." Today, says Flacks, global-minded powerbrokers are less concerned with how citizens perceive American government.

Just like voters in Palm Beach, Pima County residents 28 years ago found the ballot layout confusing. About one-fifth of the county’s voters voted twice: once for Nixon, McGovern or John Schmitz (the American Independent Party candidate), and once for one of six electors pledged to support the Socialist Workers Party, a revolutionary group inspired by the doctrine of Leon Trotsky. (The Socialist candidate, Linda Jenness, at 31 and four years shy of the Constitutional minimum age, had been deemed ineligible, and her name did not appear on the ballot.)

The format of the Pima County ballot was not the same as that used in other Arizona counties. Although the ballot did not list the Socialist candidate, the group had gained a ballot slot for its electors. So under the heading "President of the United States (Vote for One)" only three choices were offered: Nixon, McGovern and Schmitz.

Immediately below this trio was a separate box headed — in the largest type on the page – "Presidential Electors," and below that, in type only half as large, "Socialist Workers Party." The box included the names of the six Socialist electors, with (on the left side) the instruction "Vote for Six." Numerous voters followed that instruction, apparently perceiving this to be a separate contest from the presidential choice they had made above.

It would be difficult to otherwise account for the surge in the Socialist’s support. In two Democratic-leaning precincts on Tucson’s south side, some Socialist electors received more votes than Nixon. One elector, Lois Turner, told the Arizona Daily Star that their performance showed "People are opposed to the two-party system." But the state’s Socialist vote had been only 85 in 1968; in 1972, it was 31,000. Pima County, a mecca for retirees, had the most votes for Socialists — 29,113. Nixon won the county with more than 73,000 votes; McGovern got 56,000, and Schmitz 2,600. A total of 161,000 presidential votes were cast by 136,000 people. By 1976, the Socialist vote had dropped to 928.

It took officials two days to figure that the best way to handle things would be to give one vote to the Socialists and one to the other candidates.

Many of the key players in the Pima County debate are dead, retired or can’t remember much. The best account of the dispute is found in the archives of the Arizona Daily Star. On the day after the election, the prevailing opinion favored throwing out the ballots. Secretary of State Wesley Bolin, a Democrat, and Attorney General Gary Nelson, a Republican, agreed that the ballots shouldn’t be counted. Bolin told the newspaper there was no way his office could certify votes for two sets of presidential electors. "Illegitimate and illegal," echoed Nelson.

Bolin blamed the county’s ballot format. Pima County election chief David O’Hern said all he was doing was following Bolin’s instructions. Pima County Attorney Rose Silver argued that the ballots should be counted because the Socialist’s candidate had been disqualified, rendering votes for her electors meaningless.

Two days later, opponents of the double count abruptly changed their minds. They agreed that confused citizens voting for the Socialist electors should not forfeit their presidential choice after all. The passage of time obscures the legal reasoning behind their thinking. Bolin died in 1978, after being elected governor; Silver died in 1994, at the age of 90. For former Attorney General Nelson, 65 and retired, the episode "doesn’t ring any bells."

The Arizona Daily Star reported on a heated exchange between Rose Mofford, then assistant secretary of state (and later briefly Arizona’s governor after the impeachment of a Republican), and Pima County election chief O’Hern about responsibility for the muddle. Today, Mofford can’t recall the argument. "After 51 years in public office, you can’t remember every incident," Mofford told the Weekly.

In 1979, Arizona changed its election code to make it clear that voters can choose only one candidate. The code now reads, "If the voter marks more names than there are persons to be elected to an office . . . his ballot shall not be counted for that office."

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