Saying voters are being disenfranchised, two groups are asking a federal judge to void an Arizona law that says ballots have to be received by county officials by 7 p.m. on Election Day to be counted.
In new legal papers filed here Tuesday, attorney Sarah Gonski said the state has “no legitimate interest” in enforcing the deadline, particularly when the state is promoting that people cast their ballot by mail.
“Although Arizona may certainly set a reasonable deadline to receive ballots to ensure the finality of election results, the current Election Day receipt deadline is unreasonable and disenfranchising,” she wrote. “It is contrary to voters’ reasonable expectations, necessitates that ballots be cast far earlier than they need to be, and is poorly communicated to voters.”
What Gonski told Judge Dominic Lanza would be reasonable is to require that ballots be postmarked by the 7 p.m. deadline and received within five business days afterwards.
“After all, Arizona need not complete its total vote count until 20 days after Election Day,” she said.
Gonski said this isn’t just an academic question.
She specifically cited the 2016 presidential preference primary where more than 72,000 Republicans cast a ballot saying they wanted Marco Rubio to be the GOP nominee. She said it was that requirement to have ballots in by that 7 p.m. Election Day deadline that caused so many people to “waste their vote on a ghost candidate.”
But Gonski also cited figures she said prove that minority voters, particularly those in rural counties, are five to six times more likely than Anglos to have their early ballots uncounted because they did not arrive on time. And she said at least some of the blame for that is “traceable to Arizona’s long history of discrimination against minority voters.”
“Discrimination in education has led to persistent gaps that have left these minority voters less educated than their white counterparts, which makes them less likely to be aware of the Election Day receipt deadline,” she wrote.
At least part of Gonski’s lawsuit relies on that disproportionate effect to claim the deadline violates the Voting Rights Act. It generally prohibits states from enacting laws that impair the rights of minorities to vote.
But she also claims that the law is an impermissible burden on the right of all people to vote.
Gonski is representing two groups.
One is Voto Latino, which she said is a nonprofit group that is involved in trying to register Latinos to vote. The other is Priorities USA which she describes as a “nonprofit, voter-centric progressive advocacy and service organization.”
It names Secretary of State Katie Hobbs, as the state’s chief election officer, as defendant. An aide to Hobbs said she was studying the lawsuit but does not comment about ongoing legal matters.
Central to the litigation is the wide use of mail ballots, with about 1.9 million votes cast that way in the 2018 election out of about 2.4 million ballots cast.
Gonski said while people who get early ballots can bring them to a polling location on Election Day, about 90 percent of people who voted with a mail ballot returned it through the U.S. postal service. She said that personal drop-off option can be “more time-consuming and burdensome” for rural voters who often live many miles from a drop-off location, as well as Hispanic and Latino voters who she said have difficulty obtaining transportation or leaving work during the hours when county recorders’ offices are open.
And Gonski said the situation is complicated by a 2016 law that now makes it a crime for volunteers and others to help collect early ballots. Gonski’s law firm has been involved in separate legal efforts – so far unsuccessful – to void that ban on what has been called “ballot harvesting.”
The result, she said, is borne out by figures from the 2018 election when she said Maricopa County rejected 1,535 ballots for arriving late.
“And Navajo County reported rejecting an eye-popping 3,062 late ballots – over 8 percent of all ballots cast in that county,” she told Lanza.
“Clearly, a large swath of Arizona voters believe their ballot is timely even when it is not,” Gonski said, with election officials and average voters unable to say exactly how early people need to be dropping their ballots into post office boxes to ensure they arrive on time to be counted.
She said that just last month the Pima County Recorder’s Office provided two different “recommended deadlines” for when voters were “required” to mail their ballots for them to be counted.
“Counties’ recommendations on when to place a ballot in the mail shift for a simple reason: Those recommendations are purely guesses,” Gonski said.
Beyond that, she argued that it is “reasonable” for people to believe that a ballot is timely if it is postmarked by Election Day.
“Postmarks are used to assess the timeliness of payments, applications, and other documents submitted to the government in other contexts,” she said, including taxes. And she said using a postmark rule makes good sense.
“Mail delivery times in Arizona are unpredictable, particularly in rural areas where home delivery is not common and even local mail is often re-routed through central processing facilities in far-flung cities,” Gonski said.
That issue of the disparate impact on Hispanics, which could be key to getting the relief sought, raises a separate question of why, one that Gonski conceded in the legal papers she cannot answer. But she has some theories of why, and not just that her claim there has been discrimination against minorities in education in Arizona.
She also said there is a lack of language assistance to voters. Gonski said that is coupled with “sustained resistance to bilingual education and mandated English-only education.”
“Hispanic and Latino voters are less likely to understand the instructions provided by county election officials regarding the Election Day receipt deadline, particularly when those instructions are inconsistent,” Gonski told the judge.