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In a new filing Tuesday, Brnovich acknowledged Monday’s ruling by a judge that state laws requiring special election boards to deliver ballots to voters “in person� are trumped by federal laws requiring states to make “reasonable accommodations� for voters with disabilities.

And the attorney general will not appeal the ruling, by Maricopa County Superior Court Judge Randall Warner.

But Brnovich said he wants to be sure that the process blessed by Warner is limited to those who truly cannot have face-to-face contact.

He said the proof will be in how many such video ballots are cast in the Nov. 3 election, which is why he wants them separated and not counted until after Election Day. Early voting begins Wednesday, Oct. 7.

“It is necessary to determine who utilized the virtual voting procedures,� Brnovich said. “Further, in the event the virtual voting procedures are abused, preserving the ballots prevents unlawful ballots from being counted.�

That, however, opens the door to what could be a personally invasive inquiry into whether each person who cast a video ballot had no other way to vote.

“Special election boards� are available in all counties. The two-person boards, one member from each major party, go to nursing homes, hospitals, private homes and elsewhere to aid those who are physically unable to fill out an early ballot and cannot go to the polls on Election Day. By law, these boards must deliver the ballots “in person,� with a requirement for a signature.

Democratic Maricopa County Recorder Adrian Fontes, however, set up a policy that allows the boards to instead present the ballots via video to those who cannot be in direct contact, either because access is restricted due to COVID-19, or if people have compromised immune systems and don’t want to interact with others during the pandemic.

Democratic Secretary of State Katie Hobbs followed suit, sending out similar guidelines to all counties.

On Monday, Warner rejected Brnovich’s arguments that there are no exceptions to the “in person� requirement. He said federal laws preclude discriminating against those considered disabled.

Brnovich said he has no problem if that’s the extent of it, with the special procedure limited to a “handful� of voters. Just 44 people used the process in the presidential preference primary earlier this year and in the regular August primary.

But in case there’s a significant increase, he wants all ballots cast by video set aside until at least Nov. 4.

Brnovich wants an inquiry into whether the election boards made the necessary “fact-intensive investigation� about whether a specific voter qualified for the “reasonable accommodation� required by federal law and for being excused from handling the ballot and signing it.

The judge has not set a hearing. But he indicated during a hearing Monday he was willing to consider it.