A federal appeals court has put a hold on a judge’s ruling that gave people extra time after Election Day to sign their ballots.
The order Tuesday does not technically overturn last month’s decision by U.S. District Judge Douglas Rayes, an appointee of President Obama, that those who forgot to sign the envelopes before dropping them in the mail should have an extra five days to “cure” the problem. That will have to wait for a full-blown hearing which has not yet been scheduled.
But the three-judge panel said that, by their reckoning, a bid by Attorney General Mark Brnovich to overturn the ruling is likely to be successful. They said the current deadline to fix this kind of mistake is “reasonable” and that the five-day grace period to supply missing signatures “would indeed increase the administrative burdens on the state to some extent.”
If nothing else, the appellate judges, made up of nominees of Presidents Reagan, Clinton and Obama, said they do not like the idea of forcing a change right now.
“As we rapidly approach the election, the public interest is well served by preserving Arizona’s existing election laws, rather than sending the state scrambling to implement and to administer a new procedure for curing unsigned ballots at the eleventh hour,” they wrote.
In granting the stay, the appellate court likely has effectively killed any chance that voters will have this year to cure their ballots after Election Day. That’s because it may not be possible for the judges to have a hearing, issue a ruling and then have whichever side loses take it to the U.S. Supreme Court before Election Day.
It does, however, preserve the ability of the challengers to make their case for upholding Rayes’ decision ahead of the next election.
Tuesday’s order is a setback for the Arizona Democratic Party, the Democratic National Committee and the Democratic Senatorial Campaign Committee who had asked Rayes to block election officials from rejecting unsigned ballots.
There’s a political component to the fight.
Alexis Danneman, who represents challengers, said it was “inevitable” that Democrats — or those who would vote for Democrats — would not have their votes counted unless they were given an opportunity to cure their unsigned ballot envelopes.
On the other side of the fight, the Republican National Committee, the Arizona Republican Party and the Donald J. Trump for President Committee intervened to preserve the law.
In providing the extra five days, Rayes pointed out that Arizona lawmakers have provided that same grace period to those who are notified by election officials that the signatures on the envelopes do not match what is on file at county offices. The judge said he saw no difference or additional burden created by extending the same consideration to those who forgot to sign the envelope at all.
The appellate judges, however, said that misses a key point.
In the case of a mismatched signature, they said that could be the result of a subjective decision by an election worker.
“It is rational, then, that the state might voluntarily assume some additional administrative costs to guard against the risk of losing such votes at potentially no fault of the voters,” they said.
By contrast, the judges said, the failure of a voter to sign the ballot envelope is totally that person’s fault.
“The state may still reasonably decline to assume such burdens simply to give voters who completely failed to sign their ballots additional time after Election Day to come back and fix the problem,” they wrote. And they said that requiring people to sign their ballot envelopes imposes only a “minimal” burden.
Brnovich had help in his bid to stay the law, beyond the Republican organizations. The attorneys general of 20 states — all Republicans like Brnovich — submitted their own legal brief asking the appellate judges to leave the Arizona law in place and accusing Rayes of “overreach.”