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9th Circuit dismisses suit seeking more days to vote


Residents of the Navajo Nation won’t get extra time to cast their ballots and be sure they are counted.

In a unanimous ruling Thursday, a three-judge panel of the 9th Circuit Court of Appeals did not dispute evidence presented by challengers that it takes longer for ballots to be mailed to reservation addresses than it does for people — non-Indians — not living on tribal lands. Ditto the reverse of the process of more time needed to get ballots from reservation address to county election offices.

Nor did they address other factors that can give reservation residents less time to consider their ballots, including the lack of mail delivery and financial hardships to get to the post office.

Instead, the judges said all that is irrelevant to the effort to challenge the law that requires ballots to be received by county election officials by 7 p.m. on Election Day to be counted.

They pointed out that the lawsuit was filed not by the tribe on behalf of all its members but instead by six individuals living on tribal lands. In fact, they noted, Navajo officials sent a letter to the attorneys for the plaintiffs saying it was wrong to say they were suing on behalf of the tribe.

And what that means, the judges said, is the plaintiffs had to prove that they, personally, were harmed by current deadline and are entitled to have their votes counted if they simply are postmarked by that time and date. But the court said the challengers did not do that.

“What is missing … is any allegation or showing as to, at a bare minimum, whether any of the plaintiffs intend to vote in this general election, and, if so, whether they intend to vote by mail,” the court wrote in the unsigned opinion. In fact, the judges said, there isn’t even any evidence that any of the plaintiffs are signed up for automatic receipt of an early ballot or whether they, personally, face challenges in terms of their location or other factors, including allegations that the U.S. Postal Service has curtailed mail service.

Nor is there any indication that any of the plaintiffs themselves lack home mail delivery, the need for language translation, lack of access to public transportation or the lack of access to a vehicle “such that the receipt deadline will harm their ability to vote in this election,” the court concluded.

“While we are sympathetic to the claimed challenges that on-reservation Navajo Nation members face in voting by mail, we lack jurisdiction because (Darlene) Yazzie and the other individual plaintiffs do not satisfy the irreducible constitutional minimum of standing” to bring this legal action, the court said.

That’s not the only problem the appellate court found with the lawsuit and the demand that ballots from a Navajo Nation address be counted if it meets the postmark deadline.

“Not everyone who resides on the reservation is a Navajo,” the court explained.

“Non-minority voters also reside on the reservation,” they continued. “And not every Navajo living on the reservation is an enrolled member of the Navajo Nation.”

What all that means, the judges said, is there is no way for county recorders to give the special treatment sought for Navajo Nation members — who are entitled to sue under the federal Voting Rights Act on allegations of discriminatory treatment — versus non-Native Americans who are not entitled to use the federal law to seek particular accommodations.

There’s a more practical consideration: The U.S. Postal Service does not always date-stamp items with the day and time they actually are posted.

And there’s something else. The judges said the lawsuit, filed just three weeks before the Nov. 3 general election, comes too late for them to consider and order major changes in how the state handles ballots and elections.

“We do not discourage challenges of voting laws that may be discriminatory or otherwise invalid, whenever they may arise,” the judges said.

But they pointed out that the deadline for receipt of ballots has been on the books in Arizona since 1997. And they said the U.S. Supreme Court has told federal judges that, absent unique circumstances, they “should ordinarily not alter the election rules on the eve of an election.”

There was no immediate response from those representing the challengers.

Nothing in Thursday’s ruling keeps others from mounting their own challenge to the ballot-receipt deadline. But the judges warned that any last-minute challenges like this one are likely to meet the same fate.


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