A federal appeals court is going to give Democrats a new chance to argue that an Arizona law banning “ballot harvesting” is illegal.
In a brief order, the majority of the judges on the 9th Circuit Court of Appeals said they want to review and reconsider a 2-1 ruling by one of their panels last year that upheld the 2016 law that bars Arizonans from collecting and delivering the ballots of others.
In that ruling, the majority brushed aside complaints from the state and national Democratic parties that the Republican-controlled Legislature had no evidence of fraud from the practice. Nor were they persuaded by arguments that the restriction has a harsher effect on the voting rights of minorities than Arizona residents in general.
Judge Sandra Ikuta, writing for the majority in that decision, did say there was reason to believe that the change was approved, at least in part, by “partisan considerations.” But Ikuta said that fact does not make the law unconstitutional.
The order does not mean that a full panel of 11 judges intends to override what Ikuta wrote for herself and Judge Carlos Bea. But it is relatively rare for the full court to grant such review.
No date has been set for a hearing.
In a prepared statement, a spokeswoman for Attorney General Mark Brnovich said her boss is unconcerned with the court reviewing the earlier ruling.
“The state of Arizona has successfully defended this important common-sense law for nearly three years and will continue to defend the rule of law,” said Katie Conner.
What’s behind “ballot harvesting” is the fact that most Arizonans receive early ballots. They can be filled out and mailed back or delivered to polling places on Election Day.
But the law requires mailed ballots to be delivered by 7 p.m. on Election Day. So anything dropped in a mailbox within a week or so may not get counted.
Political and civic groups have in recent years gone into neighborhoods, asking people if they have returned their ballots and, if not, offered to take it to polling places on their behalf.
But Republicans, in approving HB 2023 to ban the practice in 2016, argued that presents too many opportunities for mischief.
The law does have exceptions for family members, those living in the same household, and caregivers for those in nursing homes and similar facilities.
During the debate, however, supporters of the ban did not cite a single confirmed incident where a ballot was altered or did not get delivered. In fact, Rep. J.D. Mesnard, R-Chandler, argued it’s irrelevant whether there is fraud or not.
“What is indisputable is that many people believe it’s happening,” he said. “And I think that matters.”
The challengers to the law already have one important voice on their side: Chief Judge Sidney Thomas.
In his dissent on the original ruling, Thomas said his colleagues ignored evidence presented.
“Arizona’s policy of wholly discarding – rather than partially counting – votes cast out-of-precinct has a disproportionate effect on racial and ethnic minority groups,” he wrote, unconstitutionally burdening the right to vote. And Thomas said the data produced by Democrats on the ban on ballot harvesting, complete with penalties of a year in prison and a $150,000 fine, “serves no purpose aside from making voting more difficult, and keeping more African American, Hispanic, and Native American voters from the polls than white voters.”
And Thomas derided the evidence cited by some lawmakers in supporting the ban.
He specifically mentioned claims by Don Shooter, then a Republican state senator from Yuma, that ballot collectors steam open sealed envelopes and decide whether to submit them based on what was inside. Even U.S. District Court Judge Douglas Rayes, who first reviewed the complaint, found that “demonstrably false,” with the trial judge saying Shooter’s views were “implicitly informed by racial biases.”
“And if Sen. Shooter was insincere, he purposely distorted facts in order to prevent Hispanics — who generally preferred his opponent – from voting,” Thomas said.
Thomas was no more impressed by a soundless video produced by A.J. LaFaro, who was chairman of the Maricopa County Republican Party. The judge said it showed nothing illegal but was accompanied by a voice-over from LaFaro claiming the man was acting to stuff the ballot box.
The new legal development in the Arizona comes as the practice of ballot harvesting has drawn national attention with the results of a North Carolina congressional race being delayed by an investigation into whether Republicans there illegally collected the ballots of minority voters and then purposely failed to turn them in.
But attorney Spencer Scharff who represents Democratic interests in a separate challenge to the ballot harvesting law, said whatever mischief that took place in North Carolina is irrelevant and should not be used as an excuse to allow Arizona lawmakers to ban the practice here.
“There are numerous laws currently on the books, both state and federal, that properly regulate criminal behavior as it relates to elections,” he said. And Scharff said that’s not just true in North Carolina.
“Before they passed HB 2023 it was already a crime to tamper with someone’s ballot, to steal someone’s ballot,” he said. “It was already a crime to collect someone’s ballot and then fail to deliver it, effectively stealing that ballot.”
What that leaves, Scharff said, are simply the additional hurdles that a ban on ballot harvesting creates for voters.
Scharff is representing Democratic activist Rivko Knox in a separate challenge to the ballot harvesting law. She argues it interferes with her First Amendment rights and contends that the Arizona law illegally infringes on the exclusive right of the federal government to regulate who can deliver mail.
That argument fared no better before the same three-judge panel, with even Thomas rejecting those arguments. Scharff is filing his own separate bid to have the full 9th Circuit review the ruling.