Page:Aguilera v. Fontes (CV 2020-014562) (2020) Order.pdf/5

 CV 2020-014562 not be able to read them, or the tabulators experienced some problem that interfered with the machines' ability to do so. It is after all the fallible and imperfect humans who complete ballots, providing opportunity for the voter him or herself to cause inadvertently the very situation that prevents the ballot from being readable by the machine. Similarly, it is not genuinely debatable that machines at times can and do malfunction, break down, and experience problems operating as designed and expected. In sum, Plaintiffs' underlying, explicitly asserted premise that voting machines are, or are required by law to be, always perfectly accurate is simply not credible, reasonable or provable.

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. A flawless election process is not a legal entitlement under any statute, EPM rule, or other authority identified by the parties or otherwise known to the Court. Rather, a perfect process is an illusion.

Plaintiffs' first sentence of their Complaint states "Plaintiffs are two individuals who experienced difficulties voting on election day." Plaintiffs thereafter contradict themselves in footnote 1 on page 8 ("Footnote 1") which reads "References to plaintiffs should also be taken to refer to those Maricopa County voters who experienced similar issues." In Aguilera I, Plaintiffs Aguilera and Drobina indicated an intention to certify a class of voters purportedly harmed by using Sharpie markers on their ballots and to proceed with that matter as a class action. No such certification occurred as Plaintiffs voluntarily and shortly dismissed Aguilera I. In this matter, class certification has not been requested. Therefore, in this cause, contrary to Footnote 1, no evidence or claims are properly before the Court concerning possible grievances of any unidentified voters.

Perhaps related to Footnote 1, Plaintiffs called as a Hearing witness Joshua Banko ("Banko"), a former Elections Department clerk who worked on Election Day at the polling location at the Paradise Valley Mall, Entrance 4, in Phoenix. The crux of Banko's testimony was that during the voting at the Paradise Valley Mall on Election Day, he observed issues with the two tabulator machines used at that site accepting ballots from "approximately 80%" of the voters at that location.

THE COURT FURTHER FINDS Banko's testimony unhelpful to the issues before the Court for two primary reasons. Docket Code 042