If the Arizona Supreme Court rules early voting is unconstitutional, Maricopa County could see ten times as many voters come to the polls and, elsewhere in the state, officials say it would lead to “electoral chaos.”
Nearly 92% of those who voted in the 2020 election in the county voted early. Statewide, 80% of voters did. Maricopa County Recorder Stephen Richer said completely flipping the script and having those ballots cast on Election Day would fundamentally alter the assumptions made in the past few months in terms of getting ready for this year’s elections.
“We had around 180,000 people vote on Election Day in November 2020, and if the lawsuit were found to be meritorious, I assume that number would go up to around 1.9 million,” Richer, a Republican, said. “That would be basically 10 times that we’d have to expand everything that goes into voting on Election Day.”
The Arizona Republican Party, in a lawsuit filed in late February, argues that vote-by-mail and early in-person voting are unconstitutional and that the only constitutional way to vote is in-person, on Election Day. The AZGOP went straight to the state Supreme Court – its attorney Alexander Kolodin argued that the justices need to address the legality of early voting before the early voting period opens for the November general election.
The state’s high court accepted the case. The justices said they would consider it without holding oral arguments. If they don’t nix early voting entirely, Kolodin asks that they constrain the current early voting rules, including striking down the state’s 31-year-old “no-excuse” early voting law, which allows Arizonans to vote early without having to provide a reason, and ditching ballot drop-boxes.
Former Maricopa County Recorder Helen Purcell was in office in 1991 when the no-excuse early voting law was passed and in 1992 when it was implemented. Purcell said this is the first time she has heard the argument that the law is unconstitutional.
“I don’t know of that ever being said before,” said Purcell, who held the office for 28 years before she was unseated by Adrian Fontes in 2016.
Over the years, early voting gained popularity.
“Like anything else, it started off at a slow pace, but everybody really got on board,” Purcell said.
In 1992, the first general election after the no-excuse early voting law passed, 7.84% of Maricopa County voters voted early, according to the Maricopa County Elections Department. In 2008, the first general election after the Permanent Early Voting List law passed, that was up to 55%. In the 2016 general election, when there was more than one in-person early voting site for the first time, 78% of county voters cast early ballots.
As early voting became county voters’ preference, Purcell said the county shifted accordingly. For example, the county reduced the number of precincts in part because fewer people were physically going to the polls.
Reversing course and opening more polling locations would be tricky, Purcell said, regardless of whether they were done by precinct or used larger voting centers.
“It is extremely difficult to find places for polling places, and particularly if you had to find very large ones,” she said. “Add to that the number of people it would take to staff those. Both of these are issues that would be difficult at best.”
Purcell had issues with polling places that contributed to Fontes defeating her in 2016. Purcell’s office cut the number of polling places in the 2016 presidential preference election to 60, down from about 200 in 2012 and about 400 in 2008. Purcell had expected 71,000 people to vote in-person, but more than 83,000 did. She took the blame but also said at the time that a lack of state funding played a role in the decision.
Richer said finding polling places and volunteers continues to be difficult.
Beyond that, results would be delayed, Richer said. He said everything would be processed on a precinct-based tabulator, and all those memory cards would then have to be taken to central count tabulation, where about 90% of ballots are currently counted.
He said his office has not explored the issue “at all.”
“We haven’t given it much thought,” Richer said. “We’ll see what the Supreme Court rules, and whatever the law is, we will do our absolute best to comply with it.”
Outside of Maricopa County, the impact of an end to mail-in voting would look different, but nonetheless significant.
In Coconino County, a lawyer for the Board of Supervisors wrote that there would be “electoral chaos” if mail-in voting were curtailed.
“The current configuration of precincts and their outfitting of personnel and supplies would be at risk of collapse if 93,393 voters were suddenly at the polls as opposed to the established, self-selected process of having 61,440 voters voting early,” the attorney wrote in an amicus brief filed on behalf of the supervisors.
They also noted that a number of voters would face serious barriers to actually getting there: “Without early voting, many voters in the rural areas of the county may have to drive over 60 miles one way to get to their polling place.”
And beyond election administration, Attorney General Mark Brnovich has used the case as an opportunity to suggest that the entire Elections Procedures Manual – the 500-page document that details how elections are administered in the state – might need to be thrown out. Even though Brnovich gave his stamp of approval to the manual in 2019, he filed an amicus brief urging the court to decide whether the 2019 manual might be invalid due to provisions that he argues go beyond the scope of its authority.
Since the case addresses hot-button political issues, candidates and officials from both sides of the aisle have used amicus briefs and other actions to weigh in on the implications of the lawsuit.
The Arizona Democratic Party is arguing that pulling the plug on mail-in voting would be nothing short of disenfranchisement for many voters – including demographic groups associated with Democrats.
“Black, Hispanic, Native American, and young voters, are among those constituencies who are more likely to have their voting rights severely impeded, and in some cases, effectively withdrawn,” the party argued in a motion asking to be named as a co-defendant in the case.
At a press conference on March 16, Democratic Party Chair Raquel Terán said, “Democrats will not let the Arizona Republicans take your right to vote away.”
Kari Lake, a GOP gubernatorial candidate, filed an amicus brief supporting the suit and asserting that no-excuse mail-in voting is “not consistent with the Arizona Constitution.”
Kris Mayes, a Democrat running for attorney general, filed an amicus brief criticizing the suit and arguing the state Constitution clearly allows for the practice.
But reactions to the suit haven’t split perfectly along party lines.
In a break from others in his party, the state’s highest-ranking Republican has also come out against the case. On March 15, Gov. Doug Ducey panned both the idea and the strategy behind the lawsuit, calling it “ill-conceived and poorly-crafted.”
“It would undo the work of many Republican governors and secretaries of state over the past several decades, and I’m certain the way it’s written, it’s destined to fail,” he said.