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Court: ‘Ballot harvesting’ ban not 1st Amendment violation

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A federal appeals court has rebuffed yet another attempt to void the state’s 2016 ban on so called “ballot harvesting.”

In a unanimous decision, a three-judge panel of the 9th Circuit Court of Appeals rejected arguments by Democrat activist Rivko Knox that making it a felony for her to take someone else’s ballot to polling places interfered with her First Amendment rights. And the judges were no more sympathetic to her contention that the Arizona law illegally infringed on the right of the federal government to regulate who can deliver mail.

This is the second appellate court defeat for those who are opposed to the law. The judges have previously rejected arguments that the statute banning ballot harvesting is legally unjustified because there is no evidence that the practice resulted in fraud.

The fight is over what had been the practice of some political and community groups of going door-to-door ahead of elections to ask people if they already had mailed back their early ballots. If not, the volunteers would offer to deliver them, especially if the election were only a few days off and there was no guarantee that mailing them would get them to county election officials on time.

In 2016 the Republican-controlled Legislature voted to make the practice a felony, with penalties of up to a year in state prison and a $150,000 fine. Backers said they were concerned that allowing just anyone to pick up ballots could lead to fraud or mischief.

When the first challenge was rebuffed by a federal judge, Knox came back with a new legal theory.

In essence, she argued, the collection of early ballots is “expressive conduct” protected by the First Amendment. The message, Knox said, was her support of widespread voting by mail and that voting is so fundamental that she is committed to helping people exercise their right to vote no matter for whom they vote.

But appellate Judge Sandra Ikuta, writing for the court, said Knox failed to prove that the conduct of collecting ballots “would reasonably be understood by viewers as conveying any of these messages or conveying a symbolic message of any sort.”

Ikuta, a President George W. Bush appointee, was no more sympathetic to Knox’s claim that she was engaged in delivery of something newsworthy entitled to First Amendment protections. The court acknowledged that early ballots, once filled out, do constitute the speech of the voters, that does not mean that Knox, had a constitutional right to deliver that “speech.”

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