A new ruling upholding Arizona election laws comes as state lawmakers just changed one of the reasons the U.S. Supreme Court agreed to leave those statutes in place.
In concluding the ban on ballot harvesting does not violate the Voting Rights Act, the court cited how easy it is for Arizonans to cast early ballots, Justice Samuel Alito pointed out that, among other things, “any voters may ask to be sent an early ballot automatically in future elections.” That was true at the time the case was argued at the court in March.
But that was before the Republican-controlled Legislature adopted SB1485.
That law says that if someone does not return an early ballot in at least one of four prior elections the person is dropped from what until now had been called the “permanent early voting list.”
They still could sign up again to get early ballots. They also would have to be notified before being removed from the list.
And they could still go directly to the polls on Election Day.
But it would entail an additional hurdle.
More to the point, foes argued this would have a disparate negative impact on minority voters who may be less inclined to vote in every election but still want the option of getting that ballot for the years they are interested in casting an early ballot. That proved particularly true in 2020 with not just record turnout but also nearly 90% of the votes cast by early ballots.
All that raises two questions.
The first is whether the Supreme Court might have reached a different conclusion on the legality of the 2016 law against “ballot harvesting” had the justices known of the subsequent action of Arizona lawmakers. That, for the moment, remains an academic question.
Second is whether this new law fits within the guidelines laid out in the Supreme Court’s July 1 ruling about what changes states can and cannot enact without running afoul of the federal Voting Rights Act.
During debate on SB1485, proponents argued that having un-voted early ballots leads to the possibility that someone else could get hold of them and cast a fraudulent vote. Sen. Vince Leach, R-Tucson, said that in Pima County alone there were about 70,000 early ballots mailed out last election that were not returned.
But Sen. Kirsten Engel, D-Tucson, said there is no documented evidence of fraud due to early voting.
That may be irrelevant. In their July 1 ruling, the justices said a state need not have evidence of fraud before enacting restrictions designed to protect election integrity.
There is, however, still the question of whether the law will have a disparate impact on people of color.
That was the argument of Sen. Martin Quezada, D-Glendale. He said that leads him to believe that the measure was enacted due to “systemic racism.”
Attorney General Mark Brnovich, who defended the ballot harvesting law at the Supreme Court, said he believes SB1485 is defensible.
“In and of itself, cleaning up early voting lists is not something that’s going to trigger the Voting Rights Act per se,” he told Capitol Media Services.