Conceding there’s no evidence of fraud, an attorney for the state asked a federal judge Wednesday to allow enforcement of a new law making “ballot harvesting” a felony.
James Driscoll-MacEachron told U.S. District Court Judge Douglas Rayes that lack of evidence is legally irrelevant. He said the Republican-controlled Legislature was entitled to approve HB 2023 to keep it from happening.
“It assists in preventing voter fraud and preserving the integrity of elections,” Driscoll-MacEachron argued. He said limiting who can handle ballots ensures there will be no tampering.
Rayes, however, expressed some concern why, after years of people being sent early ballots — and years of people being able to return the ballots of others without a single instance of fraud — this law criminalizing that practice is necessary.
Driscoll-MacEachron said the issue is the risk that fraud might occur in the future. Still, the judge questioned why this law, given there already are state laws making it a crime to tamper with or throw out someone else’s ballot.
“It makes sure we know where the ballots are,” the attorney responded. “This law serves a state interest.”
Sara Jane Agne, representing the Arizona Republican Party, which has intervened to help defend the law, also said lawmakers are entitled to act to prevent fraud before it occurs.
“You need not wait until someone breaks into your house before putting a lock on the door,” she said.
The law makes it a felony, punishable by a year in state prison, for someone to take a voted ballot, even in a sealed envelope, and drop it off at a polling place. There are exceptions for family members, caregivers, election workers and postal workers.
Proponents contend the practice is an invitation to fraud. But the question of whether Rayes blocks the law from taking effect as scheduled on Saturday could turn on a different issue.
The lawsuit filed by the state and national Democratic parties, the Clinton campaign and others revolves around the contention that the law illegally imposes a higher burden on minorities than the population at large.
Attorney Marc Elias acknowledged he has no statistical evidence to prove that contention. Instead he cited affidavits by various individuals, including state lawmakers, who talked about how it is more common in minority communities to allow someone else to take their early ballot to the polls.
In fact, Elias argued to the judge that even some of the statements offered by Republicans to defend the law actually prove his point. He said even Sen. Carlyle Begay, R-Ganado, acknowledged the effect on the Navajo Reservation he represents.
Elias said, though, that Begay and others defend the law anyway saying it addresses “an evil that needs to be cured.” But he told Rayes the only issue that is relevant is the impact of the law, not its merits.
There’s another thing working in favor of challengers: what Elias argued was an admission by the state that ballot harvesting laws are illegally discriminatory.
In 2011 state lawmakers approved a less-onerous version of the same law. Rather than making it a felony to collect the ballots of others, it required anyone who delivers more than 10 early ballots to provide photo identification.
At that time Arizona was required to get federal “preclearance” from the Department of Justice for any changes in election laws. That was based on the state’s history of discrimination against minorities.
Federal officials raised questions about whether it complied with the Voting Rights Act, which makes it illegal for states to enact laws that disproportionately affect minorities. The result, he said, is that Amy Bjelland, then the state elections director, simply withdrew the law from consideration, leaving the measure on the books — but unenforceable.
That preclearance requirement was repealed in 2013 by the U.S. Supreme Court, meaning Arizona did not need to submit HB2023 to the Department of Justice.
But Elias told Rayes it still is illegal for states to alter voting laws to discriminate against minorities. And he said this new law is as least as discriminatory as the one the state withdrew from consideration.
Driscoll-MacEachron said he did not know why the state concluded the 2011 law might run afoul of the Voting Rights Act. But he told Rayes what happened then is legally irrelevant to whether HB2023 is legal.
The challenge is not based entirely on the Voting Rights Act. Elias also contends that the law affects the First Amendment rights of voters.
In deciding whether to enjoin enforcement of the law ahead of Saturday’s effective date, Rayes has to conclude that challengers are likely to prevail after a full-blown trial. He also needs to consider the hardships that allowing the law to take effect will have on voters, versus the harm to the state if it is placed on hold.