Arizonans remain legally barred from taking someone else’s ballot to the polls, at least for this election.
Without comment, the U.S. Supreme Court on Friday agreed to review the decision of a federal appeals court which earlier this year had voided the state’s ban on “ballot harvesting” after concluding that the Republican-controlled legislature enacted the 2016 law with the intent of suppressing minority votes. That law makes it a felony, subject to one year in state prison and a $150,000 fine, to handle anyone else’s already voted ballot.
The only exceptions are for family members, others in the same household, caregivers, election workers and the postal service.
Friday’s decision does not necessarily mean the law will be overturned. But it does mean that at least four justices found sufficient merit to arguments by Republican Attorney General Mark Brnovich and the Arizona Republican Party that lawmakers, in enacting the law, had valid concerns about the possibility of fraud.
Friday’s decision also means the justices will review another part of the same 2016 law which says if someone votes in the wrong precinct, all of the votes that person cast are discarded. The appellate court said the state should count the votes that would have been legal had the person been at the right place, such as for a statewide office like governor.
The justices now need to set a date for a hearing, presumably one where Trump’s latest appointee, Amy Coney Barrett, will be sitting on the bench. A ruling may not come until June.
What’s behind the whole practice is the fact that most Arizonans receive early ballots. They can be filled out and mailed back or delivered to polling places.
But state law requires mailed ballots to be delivered no later than 7 p.m. on Election Day. That means 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, offering to take the papers 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.
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, then-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 state and national Democratic parties sued and a trial judge upheld the law.
But in a divided decision, a majority of the 9th Circuit Court of Appeals concluded that what actually was behind the law was a desire by the GOP majority in the legislature to suppress minority votes. And Justice William Fletcher, a nominee of President Clinton, writing for the majority, said the record shows it had that effect.
He said the change in law cannot be examined solely in a vacuum.
“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,” Fletcher wrote.
The judge cited extensive testimony at trial about the number of ballots collected and turned in both others. More significant, he said the record from the trial shows that before the law was enacted in 2016, 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 collect as a Get Out the Vote strategy,” Fletcher said.
“The base of the Republican Party in Arizona is white,” he continued. “Individuals who engaged in ballot collections in past elections observed that voters in predominantly white areas were not as interested in ballot-collect services.”
Brnovich, in his arguments to the high court, said the fact that there were no documented cases of fraud related to ballot harvesting is irrelevant.
“Prohibiting unlimited third-party 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 the Republicans who control the House and Senate, then and now, to get and keep 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. And then there are the exceptions for family and household members and caregivers.
Brnovich also wants the justices to ignore one thing cited by Fletcher in the ruling: comments by then-Sen. Don Shooter, R-Yuma, who attempted to get colleagues to enact a similar law. That was after he won his 2010 election with just 53% of the vote — receiving 83% of the non-minority vote but only 20% 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 made by former Sen. Shooter.”
Brnovich told the justices all that is 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.
Friday’s decision also is a setback for Secretary of State Katie Hobbs.
In her own legal filings with the Supreme Court, she pointed out that it was the secretary of state’s office that had been sued, years earlier, before she held the office. And Hobbs said that means she, as the current holder of the office, had sole authority to decide whether to appeal the 9th Circuit ruling.
Hobbs said she believes the appellate judges got it right. And she argued, unsuccessfully, that Brnovich cannot maintain a legal action to defend the law.