Attorney General Mark Brnovich is warning the U.S. Supreme Court that all of Arizona’s election laws could be subject to challenge if it doesn’t overturn an appellate ruling voiding the state’s “ballot harvesting” laws as racially motivated.
In a new filing Monday, Brnovich lays out for the justices why he believes the 9th Circuit Court of Appeals got it wrong earlier this year when it declared that the state acted illegally in making it a crime to return someone else’s early ballot. He said the state had good reason to act in a way to prevent the potential for fraud and intimidation of voters by political operatives who were collecting these ballots.
But Brnovich also told the justices they have to slap down the logic used by the appellate judges — that Arizona lawmakers enacted the ballot-harvesting law with the goal of suppressing minority vote — in voiding the law. He said if that verbiage is allowed to stand, it could pave the way for future challenges, and not just here.
“If you accept the logic of the 9th Circuit, it would jeopardize every voting integrity law in almost every state,” he told Capitol Media Services.
“This erroneous finding could be weaponized in future litigation to undermine Arizona’s autonomy to govern itself,” Brnovich separately wrote to the high court. He called the conclusion of the 9th Circuit majority “a loaded charge with potentially long-term legal, social and practical consequences.”
The attorney general also wants the justices to void another part of the ruling which says the state cannot simply discard the entire ballot of someone who votes in the wrong precinct on Election Day. Here, too, the appellate judges said race played a factor, saying that minorities were more likely to be disenfranchised by the laws.
In his filing, Brnovich does not dispute what the 9th Circuit said is evidence of historical racism in Arizona. But he said most of the incidents cited by the appellate court are ancient history, with some going back to territorial days.
More to the point, he said the appellate judges ignored other non-racial reasons for why minorities are more likely impacted by ballot harvesting laws, including poverty, employment, home ownership, mail delivery and health.
Most Arizonans receive early ballots which 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 Election Day. So anything dropped in a mailbox within a week or so may not get counted.
Political and civic groups had for years gone into neighborhoods, asking people if they have returned their ballots and, if not, offering to take it to polling places on their behalf.
Republican legislators concluded in 2016 that created too many opportunities for mischief, though during debate they could not cite a single confirmed incident where a ballot was altered or did not get delivered. Brnovich told the high court that is irrelevant.
“Prohibiting unlimited third-party ballot harvesting is a commonsense means of protecting the secret ballot and preventing undue influence, voter fraud, ballot tampering, and voter intimidation,” he wrote.
And Brnovich rejected the contention that the law is simply an attempt by Republicans who control the Legislature to get a political edge. He pointed to the 2005 recommendations of the Commission on Federal Elections Reform, co-chaired by former President Jimmy Carter, a Democrat, that said states should prohibit outsiders from handling absentee ballots of others.
“There’s 20 states that have similar measures,” Brnovich said.
Anyway, Brnovich said, there are exceptions on who can handle ballots, ranging from election officials and mail carrier to family and household members and caregivers.
He also is asking the court to ignore one thing cited by appellate Judge William Fletcher, a President Clinton nominee, in writing the majority decision: comments by then-Sen. Don Shooter, R-Yuma, who attempted to get colleagues to enact a similar law in 2011. That was after he won his 2010 election with just 53 percent of the vote — receiving 83 percent of the non-minority vote but only 20 percent of the Hispanic vote.
Fletcher said Shooter was “in part motivated by a desire to eliminate what had become an effective Democratic GOTV strategy.” And he said that, in finally enacting the laws in 2016, “Republican legislators were motivated by the unfounded and often far-fetched allegations of ballot collection fraud made by former Sen. Shooter.”
Brnovich called that irrelevant.
“Each legislator is an independent actor,” the attorney general wrote.
“It has long been settled that what motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it,” he said. Anyway, Brnovich said, even if there is a correlation between race and political affiliation — and even if legislators are aware of that — there is no proof that Arizona lawmakers acted with racial motives.
Then there’s what Fletcher called the historical evidence of racism that the judge said has to be considered in looking at the law.
“For over a century, Arizona has repeatedly targeted its American Indian, Hispanic, and African-American citizens, limiting or eliminating their ability to vote and to participate in the political process,” he said.
More significant, he said the record from the trial shows that prior to the 2016 law minorities were more likely than non-minorities to get someone else to turn in their ballots.
“The district court found that, in contrast, the Republican Party has not significantly engaged in ballot collection as a Get Out the Vote strategy,” Fletcher wrote.
“The base of the Republican Party in Arizona is white,” he continued. “Individuals who engaged in ballot collection in past elections observed that voters in predominantly white areas were not as interested in ballot-collection services.”
There is no indication when the justices will decide whether to hear the appeal.