Uncertainty again looms over Arizona’s upcoming election, as liberal officials and progressive activists chase last-minute changes to our well-established voting practices.
In March, Maricopa County Recorder Adrian Fontes unexpectedly announced that he was mailing early ballots to every Democratic voter who had not cast a ballot, regardless of whether the voter had requested an early ballot or not. This sparked immense controversy among Arizona voters and elections officials on both sides of the aisle.
Both Arizona Attorney General Mark Brnovich and Secretary of State Katie Hobbs challenged Fontes’s decision, but Fontes attempted to send the ballots nevertheless.
Attorney General Brnovich rebuked Fontes with strong words: “The Maricopa County Recorder cannot unilaterally rewrite state election laws. Fontes is creating chaos in our elections during an already difficult time. In times of crisis, the public looks to our elected officials to follow the law – not make reactionary decisions for political gain.” The court swiftly shot down Fontes’s plan.
Since then, the Democratic Party has been busy filing lawsuits in hopes to talk the courts into hurriedly granting partisan advantages in Arizona elections. These lawsuits have argued, for example, that elections officials should count mail ballots received after Election Day, including mail-in ballots contained in envelopes that the (ostensible) voter never signed. According to these lawsuits, you have a right for your ballot to count even if you ignore elections deadlines and fail to sign your ballot envelope.
This is reminiscent of the 2016 election, where at the last possible minute, the Democratic Party challenged Arizona’s prohibition on “ballot harvesting.” That lawsuit, which is currently awaiting review by the U.S. Supreme Court, argues that it is a constitutional right for a third party to show up at your home, ask you to hand over your physical absentee ballot, and return it for you.
In 2016, Arizona was the first state to make ballot harvesting a felony due to valid concerns about voter coercion and fraud. This decision was seemingly justified in 2018, when ballot harvesting irremediably tainted a North Carolina congressional election, resulting in the State Board of Elections’ refusal to certify the election and ordering a new one.
Then again in 2018, the Democratic Party rushed to the courts just before 5:00 p.m. on Election Day to try and keep polling locations open late only in Maricopa County, which happens to be the most populous Democratic county. That is the unfortunate partisan nature of virtually all last-minute changes in election law.
When courts or elections officials change voting procedures on the eve of an election, particularly in a manner that has disparate partisan impact, it has significant consequences. It creates widespread voter confusion — most importantly among elderly voters, a vulnerable demographic that historically trends conservative — and opportunities for fraud and voter disenfranchisement.
Perhaps most importantly, though, last-minute election changes dramatically undermine public confidence in our democratic system of government. If the rules of poker changed just before the final card, you wouldn’t think the outcome was particularly fair – it’s no different in elections.
Our state is increasingly the venue for shamelessly partisan attempts to rewrite election laws at the very last minute — and as an emerging battleground state, this dismal trend will continue for the foreseeable future. Let us hope that in our state, at least, these efforts are not successful.
Kory Langhofer is a Phoenix-based attorney with extensive experience in political law, constitutional law, and government enforcement proceedings. He regularly serves as a legal expert in print, radio, and television news reports.