Court allows vote by mail despite GOP’s efforts to kill practice

All Arizonans will continue to be able to vote by mail despite efforts by the state Republican Party to kill the practice.

The state Court of Appeals on Tuesday rejected arguments by a lawyer for the GOP and Kelli Ward, its chair, that allowing people to vote from their own homes or anywhere other than a polling place violates a constitutional requirement for a secret ballot. Judge Cynthia Bailey, writing for the three-judge panel, said there are sufficient safeguards built into Arizona law to ensure that each voter’s choices are kept confidential as the Arizona Constitution requires.

Tuesday’s ruling is unlikely to be the last word. Attorney Alexander Kolodin told Capitol Media Services the appellate judges got it wrong and he plans to seek Supreme Court review.

Arizona has had some form of early voting almost since the first days of statehood. But that was limited to special circumstances, ranging from military serving overseas to people who were incapacitated.

In 1991, however, state lawmakers approved no-excuse early voting, allowing anyone to request a ballot be sent to them which they can fill out at home — or anywhere — and either return it by mail, put it in a drop box or take it directly to a polling location.

The practice has proven widely popular, with early ballots making up more than 80% of the votes cast in the most recent general election.

Attitudes in the GOP changed, however, after the 2020 election where Donald Trump lost his bid for a new term. While he outpolled Democrat Joe Biden among voters who went to the polls on Election Day, Biden had an even larger edge among those who voted early.

Objections continued into the 2022 campaign, with Republican gubernatorial hopeful Kari Lake and Mark Finchem, who was running for secretary of state, both suggesting the system of unrestricted mail-in voting was ripe for abuse.

The lawsuit takes a narrower focus based on that constitutional requirement “that secrecy in voting shall be preserved.”

Strictly speaking, Kolodin is not arguing that people can’t have a ballot sent to them by mail.

What he told the judges, though, is that the constitutionally mandated secrecy can be maintained only if an official is present when someone actually casts a ballot, and that the official “then watches the voter enclose and seal the ballot in an envelope.”

Kolodin said that can’t happen if someone is filling out a ballot at a kitchen table and sealing it there because it raises the possibility that someone else is present and watching.

More to the point, he said it opens up the possibility that someone could be coerced — or maybe even paid — to vote a certain way. That, Kolodin said, can’t happen if there is a “restricted zone” around the voter.

Bailey rejected that argument, saying that’s not what the Arizona Constitution requires.

“Arizona’s mail-in voting laws preserve secrecy in voting by requiring voters to ensure they fill out their ballots in secret and seal the ballot in an envelope that does not disclose the voters’ choices,” she wrote for herself and the other two judges.

The judge also pointed out that state law requires election officials who open the envelopes to take out the ballots without unfolding or examining them.

“At no point can the voter’s identifying information on their ballot envelope be lawfully connected with their vote,” Bailey said. “These protections are adequate to ensure the preservation of secrecy in voting.

The judges were no more impressed with Kolodin’s arguments that the ability of a voter to share his or her decisions with someone else violates the constitutional requirement for secrecy.

Bailey pointed out that state law prohibits taking photographs or videos within 75 feet of a polling place. And another statute makes it a crime to show someone else’s ballot to any person.

But she also noted that state lawmakers specifically created an exemption that allows voters to take pictures — and even share images of — their own ballots with others without violating any laws.

And she said Kolodin’s argument there needs to be a “restricted zone” around voters when they fill out their ballots is not what the Arizona Constitution requires.

“The Secrecy Clause’s meaning is clear: When providing for voting by ballot or any other method, the legislature must uphold voters’ ability to conceal their choices,” she said. “The constitution does not mandate any particular method for preserving secrecy in voting.”

Kolodin said what’s wrong with the ruling is the conclusion by the appellate judges that voters can waive their right to secrecy.

“The Court of Appeals came down, without really any substantiation for it, and said it’s waivable by the voter, which, of course, the framers of the Arizona Constitution never intended for it to be,” he said.

Kolodin said Tuesday’s ruling provides “a very clean issue” for the Supreme Court to review.

But even he conceded there is no guarantee the state’s high court will take up the issue.

In the Tuesday decision, Bailey said there is a remedy if the state GOP wants something more.

“The legislature is free to adopt the more stringent requirements urged by plaintiffs,” the judge wrote.

“But it is not constitutionally required to do so.”