Uncertainty again looms over Arizona’s upcoming election, as liberal officials and progressive activists chase last-minute changes to our well-established voting practices.
In March, Maricopa County Recorder Adrian Fontes unexpectedly announced that he was mailing early ballots to every Democratic voter who had not cast a ballot, regardless of whether the voter had requested an early ballot or not. This sparked immense controversy among Arizona voters and elections officials on both sides of the aisle.
Both Arizona Attorney General Mark Brnovich and Secretary of State Katie Hobbs challenged Fontes’s decision, but Fontes attempted to send the ballots nevertheless.
Kory Langhofer
Attorney General Brnovich rebuked Fontes with strong words: “The Maricopa County Recorder cannot unilaterally rewrite state election laws. Fontes is creating chaos in our elections during an already difficult time. In times of crisis, the public looks to our elected officials to follow the law – not make reactionary decisions for political gain.” The court swiftly shot down Fontes’s plan.
Since then, the Democratic Party has been busy filing lawsuits in hopes to talk the courts into hurriedly granting partisan advantages in Arizona elections. These lawsuits have argued, for example, that elections officials should count mail ballots received after Election Day, including mail-in ballots contained in envelopes that the (ostensible) voter never signed. According to these lawsuits, you have a right for your ballot to count even if you ignore elections deadlines and fail to sign your ballot envelope.
This is reminiscent of the 2016 election, where at the last possible minute, the Democratic Party challenged Arizona’s prohibition on “ballot harvesting.” That lawsuit, which is currently awaiting review by the U.S. Supreme Court, argues that it is a constitutional right for a third party to show up at your home, ask you to hand over your physical absentee ballot, and return it for you.
In 2016, Arizona was the first state to make ballot harvesting a felony due to valid concerns about voter coercion and fraud. This decision was seemingly justified in 2018, when ballot harvesting irremediably tainted a North Carolina congressional election, resulting in the State Board of Elections’ refusal to certify the election and ordering a new one.
Then again in 2018, the Democratic Party rushed to the courts just before 5:00 p.m. on Election Day to try and keep polling locations open late only in Maricopa County, which happens to be the most populous Democratic county. That is the unfortunate partisan nature of virtually all last-minute changes in election law.
When courts or elections officials change voting procedures on the eve of an election, particularly in a manner that has disparate partisan impact, it has significant consequences. It creates widespread voter confusion — most importantly among elderly voters, a vulnerable demographic that historically trends conservative — and opportunities for fraud and voter disenfranchisement.
Perhaps most importantly, though, last-minute election changes dramatically undermine public confidence in our democratic system of government. If the rules of poker changed just before the final card, you wouldn’t think the outcome was particularly fair – it’s no different in elections.
Our state is increasingly the venue for shamelessly partisan attempts to rewrite election laws at the very last minute — and as an emerging battleground state, this dismal trend will continue for the foreseeable future. Let us hope that in our state, at least, these efforts are not successful.
Kory Langhofer is a Phoenix-based attorney with extensive experience in political law, constitutional law, and government enforcement proceedings. He regularly serves as a legal expert in print, radio, and television news reports.
Arizona’s law making it a crime to return someone else’s early ballot is illegal, the 9th Circuit Court of Appeals ruled Monday.
In a divided decision, the majority concluded that the Republican-controlled Legislature enacted the restriction in 2016 with the goal of suppressing minority votes. And Justice William Fletcher, a President Clinton appointee writing for the majority, said the record shows that HB 2023 had that effect.
The court also voided a separate provision which says that the entire ballot is discarded if someone votes in the wrong precinct on Election Day. The judges said the state should count the votes that would have been legal had the person been at the right place, such as for a statewide office like governor.
Monday’s ruling drew an angry reaction from Sen. Michelle Ugenti-Rita, R-Scottsdale, who pushed the legislation through the process.
Michelle Ugenti-Rita
“Bull hockey,” she said when informed of the ruling. “They’re just a liberal court.”
And Ugenti-Rita said it was never her motivation to suppress minority votes, which are more likely to go to Democrats.
She also dismissed as irrelevant the court’s findings that there was no real evidence that allowing individuals to collect the ballots of others ever resulted in fraud.
“Do I need a bunch of people to fall off a balcony before I’m like, ‘You know what’s a good idea? We should probably put up a railing,’ ” Ugenti-Rita said. “Or does logic and common-sense prevail (and) tells me it’s not good practice?”
She was not alone. Four of the 11 justices that heard the case filed separate dissents saying they found nothing illegal about the policies.
Ugenti-Rita is now hoping for U.S. Supreme Court review.
What’s behind “ballot harvesting” is the fact that most Arizonans receive early ballots. They can be filled out and mailed back or delivered to polling places on election day.
But the law requires mailed ballots to be delivered by election day. So anything dropped in a mailbox within a week or so may not get counted.
William Fletcher
Political and civic groups had for years gone into neighborhoods, asking people if they have returned their ballots and, if not, offering to take it to polling places on their behalf.
The law does have exceptions for family members, those living in the same household, and caregivers for those in nursing homes and similar facilities.
History of targeting minorities
Republicans argued that presents too many opportunities for mischief, though during debate they could not cite a single confirmed incident where a ballot was altered or did not get delivered. In fact, Sen. J.D. Mesnard, then a Republican member of the House from Chandler, argued it’s irrelevant whether there is fraud or not.
“What is indisputable is that many people believe it’s happening,” he said at the time. “And I think that matters.”
After the law was enacted it was challenged by the Arizona Democratic Party, the Democratic National Campaign Committee and the Democratic Senatorial Campaign Committee.
Fletcher, in writing for the majority, said the change in law cannot be examined solely in a vacuum.
“For over a century, Arizona has repeatedly targeted its American Indian, Hispanic, and African-American citizens, limiting or eliminating their ability to vote and to participate in the political process,” he said.
Fletcher cited extensive testimony at trial about the number of ballots collected and turned in by others.
More significant, he said the record from the trial shows that prior to the 2016 law minorities were more likely than non-minorities to get someone else to turn in their ballots.
“The district court found that, in contrast, the Republican Party has not significantly engaged in ballot collection as a Get Out the Vote strategy,” Fletcher wrote.
“The base of the Republican Party in Arizona is white,” he continued. “Individuals who engaged in ballot collection in past elections observed that voters in predominantly white areas were not as interested in ballot-collection services.”
Bad Mail Service
And there are other factors.
For example, Fletcher wrote, white registered voters have home mail services at a rate over 350 percent higher than their American Indian counterparts.
Ugenti-Rita disputed any suggestion that minorities who seek an early ballot have a harder time voting them than others.
“How could it be inconvenient to return your ballot when you’ve elected to receive it that way?” she asked. “That literally defies logic.”
But Fletcher, in his ruling, did not see it that way.
“In urban areas of heavily Hispanic counties, many apartment buildings lack outgoing mail services,” he wrote, meaning they can get the blank ballot without leaving the building but would have to go somewhere else to return it.
And Fletcher said there was some testimony that incoming and outgoing mail often go missing, saying that “especially in low-income communities, frequent mail theft had led to distrust in the mail service.”
“The adverse impact on minority communities is substantial,” the judge wrote. “Without access to reliable and secure mail services and without reliable transportation, many minority voters prefer instead to give their ballots to a volunteer.”
The majority judges also found something else to buttress their findings that the legislation was racially motivated.
Fletcher cited an early version of the measure introduced in 2011 by then-Sen. Don Shooter, R-Yuma. And he pointed out that the trial judge specifically found that Shooter was “in part motivated by a desire to eliminate what had become an effective Democratic GOTV strategy.”
The trial judge then noted that Shooter had won his 2010 election with just 53 percent of the vote – receiving 83 percent of the non-minority vote but only 20 percent of the Hispanic vote.
The GOP-controlled Legislature eventually adopted the current law in 2016. But Fletcher said that, in the opinion of the trial judge, nothing had really changed.
“Republican legislators were motivated by the unfounded and often far-fetched allegations of ballot collect fraud made by former Sen. Shooter,” Fletcher said.
‘Discriminatory intent’
Ugenti-Rita said there is a record of the problems elsewhere caused by ballot harvesting. In North Carolina there was an investigation launched amid allegations that Republicans there illegally collected the ballots of minority voters and then purposely failed to turn them in.
But Fletcher pointed out that what had occurred there would have been illegal even under pre-2016 Arizona laws which already made it a crime to tamper with or refuse to deliver an early ballot.
“Criminalization of the collection of another person’s ballot was enacted with discriminatory intent,” Fletcher wrote, a direct violation of not just the U.S. Constitution but also the Voting Rights Act. And he said that any distrust of third-party ballot collection that currently exists is “`because of the fraudulent campaign mounted by proponents of HB 2023.”
“To the degree that there has been any fraud, it has been the false and race-based claims of the proponents of HB 2023,” the judge said. “It would be perverse if those proponents, who used false statements and race-based innuendo to create distrust, could now use that very distrust to further their aims in this litigation.”
On the issue of out-of-precinct voting, Fletcher wrote that there are multiple reasons people show up at the wrong location. One, he said, involves frequent changes in polling locations.
In Maricopa County, for example, at least 43 percent of polling locations changed between 2006 and 2008, with 40 percent changing between 2010 and 2012. And the judge said that there were fewer changes in where white people vote.
Fletcher also said that Arizona has a high percentage of renters which leads to a high percent of people changing address who then have to find a new polling place, even if they moved only a short distance away. And he said there are findings that people voting at the wrong location is more frequent in districts populated with renters, groups he said, which “are disproportionately composed of minorities.”
Editor’s note: This story has been revised to a more comprehensive form from the original version.
Calling the lack of evidence of fraud irrelevant, a divided federal appeals court on Wednesday upheld Arizona’s ban on “ballot harvesting.”
In a 2-1 ruling, the judges acknowledged arguments by the state and national Democratic parties that the Republican-controlled Legislature adopted HB 2023, the 2016 law, without any proof that anyone who was collecting ballots had, in fact, tampered with them. And the majority noted there are other state laws which have, for years, made it illegal to tamper with ballots.
But 9th U.S. Circuit Court of Appeals Judge Sandra Ikuta, writing for the majority, said none of that is required for lawmakers to do what they did.
“A state need not show specific local evidence of fraud in order to justify preventive measures,” she wrote for herself and Judge Carlos Bea, both nominees of President George W. Bush. She said courts are entitled to uphold such laws if they serve the state’s interest in maintaining public confidence in the integrity of the electoral process, “even in the absence of any evidence that the public’s confidence has been undermined.”
Ikuta also said there was no evidence that the Republican lawmakers who approved the plan acted with the intent of discriminating against minorities.
She did say there was reason to believe that the change was approved, at least in part, by “partisan considerations.” But Ikuta said that fact does not make the law unconstitutional.
In the same ruling, the majority upheld another election practice which says that if people show up at the wrong polling place, their votes won’t be counted, even those for which a person would otherwise be entitled to vote had they been in the right place.
For example, a voter who should have been in Tempe but ended up in Glendale would not have votes counted for school board. But the Democrats argued that person’s votes for statewide and county offices should count.
Ikuta said these rules impose only minimal burdens and do not disenfranchise voters.
But the 9th Circuit’s chief judge, Sidney Thomas, a President Clinton nominee, said his colleagues are ignoring the evidence presented.
“Arizona’s policy of wholly discarding — rather than partially counting — votes cast out-of-precinct has a disproportionate effect on racial and ethnic minority groups,” he wrote, unconstitutionally burdening the right to vote. And Thomas said the data produced by Democrats on the ban on ballot harvesting, complete with penalties of a year in prison and a $150,000 fine, “serves no purpose aside from making voting more difficult, and keeping more African American, Hispanic, and Native American voters from the polls than white voters.”
He pointed to claims by Sen. Don Shooter, R-Yuma, that ballot collectors steam open envelopes and decide whether to submit them based on what was inside. Even U.S. District Court Judge Douglas Rayes, who first reviewed the complaint, found that “demonstrably false,” with the trial judge saying Shooter’s views were “implicitly informed by racial biases.”
“And if Sen. Shooter was insincere, he purposely distorted facts in order to prevent Hispanics — who generally preferred his opponent — from voting,” Thomas said.
And then there was a soundless video produced by A.J. LaFaro, who was chairman of the Maricopa County Republican Party, which Thomas said showed nothing illegal but was accompanied by a voice-over from LaFaro saying the man was acting to stuff the ballot box.
Wednesday’s ruling is unlikely to be the last word on the issue.
The split decision in this case virtually guarantees that the Democrats will ask the full 9th Circuit to look at the issue.
And early next month the same three-judge panel of the appellate court will consider a separate challenge to the ballot harvesting law by Democratic activist Rivko Knox.
She contends the state law is preempted by federal statutes which specifically allow for any individual to deliver mail as long as it is done for free. And Knox said that once early ballots are in their envelopes they are mail.
That argument was rejected by Rayes, the same judge who threw out the challenge to the law by Democrats in this case.
What’s behind “ballot harvesting” is the fact that most Arizonans receive early ballots. They can be filled out and mailed back or delivered to polling places on election day.
But the law requires mailed ballots to be delivered by election day. So anything dropped in a mailbox within a week or so may not get counted.
Political and civic groups have in recent years gone into neighborhoods, asking people if they have returned their ballots and, if not, offered to take it to polling places on their behalf.
Republicans argued that presents too many opportunities for mischief, though they could not cite a single confirmed incident where a ballot was altered or did not get delivered.
Ikuta said the U.S. Constitution gives states the authority and obligation to manage the election process. And she said courts, when considering whether a regulation is permissible, has to balance the state’s interests against the burdens placed on someone challenging it.
More to the point, Ikuta said if the regulations are reasonable, courts will generally uphold them as long as they were not enacted for discriminatory reasons.
In this case, she said, Rayes found that the evidence presented showed that voters who have taken advantage of ballot collection services in the past “have done so out of convenience or personal preference,” not because of any hurdles placed in their path by Arizona law.
Ikuta also said Arizona has options for voters who may have difficulty getting to polling places, including required time off for workers and exceptions to the ballot-harvesting law allowing collection by family members, household members and caregivers.
The Attorney General’s Office is sending a warning letter to a firm in the state of Washington that is offering to provide what amounts, at least for the moment, to illegal “ballot harvesting” in Arizona.
Jennifer Wright who heads the agency’s Elections Integrity Unit sent a “cease and desist” letter Friday to Ted Blaszak, founder and chief executive of Initiative & Referendum Campaign Management Services.
He sent out emails through Constant Contact saying that many mail ballots will be left on the kitchen table.
“Make sure your votes make it into the ballot box,” the email states, offering “an army of ballot retrieval specialists” who will go to the door of targeted voters and collect their unmailed ballots.
But Wright told Blaszak the services he is offering to Arizona candidates and organizations amounts to illegally soliciting them to commit a felony. And she gave him until 10 a.m. Monday to confirm that he won’t do that anymore.
The letter — and the Arizona law — apparently came as a surprise to Blaszak.
“I was unaware of that,” he told Capitol Media Services. “Oh, my.”
It wasn’t always that way.
Political and civil groups had for years gone into neighborhoods, asking people if they had returned their ballots and, if not, offering to take it to polling places on their behalf. That is because there comes a point at which it’s too late to put an early ballot into the mail and expect it to be delivered on time.
That changed in 2016 when the Republican-controlled legislature voted to outlaw the practice. Supporters argued it created too many opportunities for mischief, though they could not cite a single confirmed incident where a ballot was altered or did not get delivered.
Blaszak said his emails were not aimed at anyone specifically in Arizona but just simply an effort to start up a new business.
“I have had no intention of violating Arizona’s laws,” he said. But Blazak said that, based on the letter, he won’t be offering his services to Arizonans.
It may very well be, however, that what he is offering will turn out to be legal.
In a divided ruling earlier this year, a three-judge panel of the 9th Circuit Court of Appeals voided the ban, concluding that GOP lawmakers enacted it with the goal of suppressing minority votes. But the judges agreed to leave the law on the books while Wright’s boss, Attorney General Mark Brnovich, asks the U.S. Supreme Court to overturn that ruling and allow the law to remain on the books.
The justices have not yet decided whether to hear the appeal.
The Arizona Democratic Party goes to federal court today in a bid to overturn a ban on “ballot harvesting” and ensure that ballots cast in the wrong precinct are counted anyway.
Attorney Bruce Spiva contends that the Republican-controlled Legislature acted illegally last year in making it a felony for an individual to take anyone else’s early ballot to a polling place. Spiva said he will present evidence that the measure will cause undue harm to minorities and other groups.
But Sara Agne, attorney for the Arizona Republican Party, which is defending the law, will argue that lawmakers are entitled to put procedures in place designed to prevent fraud.
Spiva could have an uphill battle.
U.S. District Court Judge Douglas Rayes last year refused to stop the state from enforcing the law while its legal merits are being debated. He concluded there was no “quantitative evidence” to show minorities were more likely to be harmed than anyone else.
The full 9th U.S. Circuit Court of Appeals, which heard arguments last year in San Francisco, thought otherwise and agreed to enjoin enforcement. But that decision was stayed by the U.S. Supreme Court, with the justices concluding they did not want to make such a radical change so close to last year’s election.
In the meantime, the appellate court sent the case back to Rayes to take a closer look. Rayes now has set aside 10 days to hear evidence.
The law criminalizes what had been a practice by civic and political groups of going out to see if people who had requested early ballots had remembered to return them by mail. If they had not, group members would offer to take it to the polling place themselves.
Now, such action could result in a presumptive one-year prison term and potential $150,000 fine.
There are exceptions. The law does not apply to family members, those living in the same household or certain caregivers who provide assistance to voters in various institutions.
The legislation is based on claims of fraud – or at least the potential for that.
Rep. Don Shooter (R-Yuma)
Rep. Don Shooter, R-Yuma, a member of the Senate in 2016, said there are “a lot of shenanigans… down in my neck of the woods.”
“I’ve been told the way they do it is they collect the ballots early. They put them in a microwave with a bowl of water, steam them open, [and] take the ballots,” he said during debate. “If they like the way it’’s voted they put them back in. If they don’t like the way it’s voted, they lose the ballot.”
But Shooter, who said he passed the tip on to state election officials, acknowledged nothing ever came of it.
Spiva told Capitol Media Services he intends to prove otherwise.
“There’s no evidence of fraud in the legislative record,” he said. “And there’s no evidence anywhere.”
But Republicans contend they do not need proof of actual fraud to justify the law. Agne said the statute is justified because it helps protect against election fraud.
“It’s in the state’s interest to have that chain of custody information,” she told the appellate court during last year’s hearing. “That’s one of the reasons the state has implemented this sensible election regulation.”
Agne also said a majority of other states have similar laws, though only a handful make it a felony like Arizona.
The lack of any actual evidence was not only an issue in court. It also came up when the measure was first debated in the House.
House Speaker J.D. Mesnard (R-Chandler)
Rep. J.D. Mesnard, R-Chandler, who is now House speaker, said it is irrelevant whether there is fraud or not.
“What is indisputable is that many people believe it’s happening,” he said in voting for the measure. “And I think that matters.”
Spiva has one other argument. He said the evidence will show the Arizona law has a disproportionate impact on minorities, meaning it runs afoul of federal voting rights laws.
His other legal challenge is to a law that governs what happens when people show up at polling places on Election Day and their names are not on the list of those registered to vote there.
If the would-be voter is simply at the wrong place, poll workers can – but are not required to – direct them to where they need to go. Voters who insist they are registered and entitled to vote there are given a “provisional ballot.”
After other ballots are counted, county election officials go through their records to see if that person was entitled to vote at that place. If not, the ballot is not counted.
Spiva contends this law disproportionately affects minorities. So, he wants Rayes to rule that counties must count any vote that the person was entitled to make had he or she gone to the proper polling place.
So, for example, a voter who should have been in Tempe but ended up in Glendale would not have votes counted for city elections or school boards. But under Spiva’s argument, that person’s vote would be counted for statewide offices like governor and U.S. senator.
In this July 16, 2019, file photo, the Supreme Court is seen in Washington. (AP Photo/Carolyn Kaster)
Attorney General Mark Brnovich is warning the U.S. Supreme Court that all of Arizona’s election laws could be subject to challenge if it doesn’t overturn an appellate ruling voiding the state’s “ballot harvesting” laws as racially motivated.
In a new filing Monday, Brnovich lays out for the justices why he believes the 9th Circuit Court of Appeals got it wrong earlier this year when it declared that the state acted illegally in making it a crime to return someone else’s early ballot. He said the state had good reason to act in a way to prevent the potential for fraud and intimidation of voters by political operatives who were collecting these ballots.
But Brnovich also told the justices they have to slap down the logic used by the appellate judges — that Arizona lawmakers enacted the ballot-harvesting law with the goal of suppressing minority vote — in voiding the law. He said if that verbiage is allowed to stand, it could pave the way for future challenges, and not just here.
Mark Brnovich
“If you accept the logic of the 9th Circuit, it would jeopardize every voting integrity law in almost every state,” he told Capitol Media Services.
“This erroneous finding could be weaponized in future litigation to undermine Arizona’s autonomy to govern itself,” Brnovich separately wrote to the high court. He called the conclusion of the 9th Circuit majority “a loaded charge with potentially long-term legal, social and practical consequences.”
The attorney general also wants the justices to void another part of the ruling which says the state cannot simply discard the entire ballot of someone who votes in the wrong precinct on Election Day. Here, too, the appellate judges said race played a factor, saying that minorities were more likely to be disenfranchised by the laws.
In his filing, Brnovich does not dispute what the 9th Circuit said is evidence of historical racism in Arizona. But he said most of the incidents cited by the appellate court are ancient history, with some going back to territorial days.
More to the point, he said the appellate judges ignored other non-racial reasons for why minorities are more likely impacted by ballot harvesting laws, including poverty, employment, home ownership, mail delivery and health.
Most Arizonans receive early ballots which can be filled out and mailed back or delivered to polling places on Election Day.
But the law requires mailed ballots to be delivered by Election Day. So anything dropped in a mailbox within a week or so may not get counted.
Political and civic groups had for years gone into neighborhoods, asking people if they have returned their ballots and, if not, offering to take it to polling places on their behalf.
William Fletcher
Republican legislators concluded in 2016 that created too many opportunities for mischief, though during debate they could not cite a single confirmed incident where a ballot was altered or did not get delivered. Brnovich told the high court that is irrelevant.
“Prohibiting unlimited third-party ballot harvesting is a commonsense means of protecting the secret ballot and preventing undue influence, voter fraud, ballot tampering, and voter intimidation,” he wrote.
And Brnovich rejected the contention that the law is simply an attempt by Republicans who control the Legislature to get a political edge. He pointed to the 2005 recommendations of the Commission on Federal Elections Reform, co-chaired by former President Jimmy Carter, a Democrat, that said states should prohibit outsiders from handling absentee ballots of others.
“There’s 20 states that have similar measures,” Brnovich said.
Anyway, Brnovich said, there are exceptions on who can handle ballots, ranging from election officials and mail carrier to family and household members and caregivers.
He also is asking the court to ignore one thing cited by appellate Judge William Fletcher, a President Clinton nominee, in writing the majority decision: comments by then-Sen. Don Shooter, R-Yuma, who attempted to get colleagues to enact a similar law in 2011. That was after he won his 2010 election with just 53 percent of the vote — receiving 83 percent of the non-minority vote but only 20 percent of the Hispanic vote.
Fletcher said Shooter was “in part motivated by a desire to eliminate what had become an effective Democratic GOTV strategy.” And he said that, in finally enacting the laws in 2016, “Republican legislators were motivated by the unfounded and often far-fetched allegations of ballot collection fraud made by former Sen. Shooter.”
Brnovich called that irrelevant.
“Each legislator is an independent actor,” the attorney general wrote.
“It has long been settled that what motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it,” he said. Anyway, Brnovich said, even if there is a correlation between race and political affiliation — and even if legislators are aware of that — there is no proof that Arizona lawmakers acted with racial motives.
Then there’s what Fletcher called the historical evidence of racism that the judge said has to be considered in looking at the law.
“For over a century, Arizona has repeatedly targeted its American Indian, Hispanic, and African-American citizens, limiting or eliminating their ability to vote and to participate in the political process,” he said.
More significant, he said the record from the trial shows that prior to the 2016 law minorities were more likely than non-minorities to get someone else to turn in their ballots.
“The district court found that, in contrast, the Republican Party has not significantly engaged in ballot collection as a Get Out the Vote strategy,” Fletcher wrote.
“The base of the Republican Party in Arizona is white,” he continued. “Individuals who engaged in ballot collection in past elections observed that voters in predominantly white areas were not as interested in ballot-collection services.”
There is no indication when the justices will decide whether to hear the appeal.
Attorney General Mark Brnovich is asking a federal appeals court to allow Arizona to continue enforcing the “ballot harvesting” law that a majority of the panel just found unconstitutional.
In new legal filings Friday, Brnovich told the judges that changing the rules now could have a confusing effect. He pointed out that early ballots for the March 17 presidential preference primary started going out Saturday for overseas voters, with the rest being mailed on Feb. 19.
“Once ballots are received, voters can began voting,” he told the 9th Circuit Court of Appeals. More to the point, he said that, based on the appellate court ruling, those ballots “are subject to being harvested.”
Mark Brnovich
So Brnovich wants the judges to agree not to enforce their ruling while he takes the case to the U.S. Supreme Court.
It will be just Brnovich who files that appeal.
Secretary of State Katie Hobbs, the state’s chief elections officer and a defendant in the original lawsuit, said she won’t be joining Brnovich in his bid to have the 9th Circuit ruling reviewed or overturned.
Potentially more significant, an aide to Hobbs told Capitol Media Services that her boss believes that the 2016 law making the practice illegal was enacted with a “discriminatory intent.”
“That’s one of the reasons she voted against the bill when she was in the Legislature,” said Murphy Hebert.
That statement could undermine Brnovich’s efforts to get the high court to overturn the 9th Circuit ruling.
In declaring the law unconstitutional, the majority declared that “criminalization of the collection of another person’s ballot was enacted with discriminatory intent.” And that, wrote Judge William Fletcher, violates the Voting Rights Act.
The law at issue is linked to the ability of Arizonans to seek “early” ballots which can be filled out at home and then either mailed in or delivered to polling places on or before Election Day.
But that requirement for ballots to be in the hands of election officials by 7 p.m. on Election Day means that anyone who has not mailed his or hers off at least a week ahead of time, depending on where in the state the item is mailed, is in danger of not having the vote count. That has led to political and civic groups going to homes and offering to hand deliver those ballots not yet mailed in.
The 2016 law makes that practice a felony unless the person doing the collecting is a family member, living in the same household or a caregiver. Supporters said that limits the potential for fraud.
Fletcher, writing the majority opinion, found the law had “substantial” impact on minority communities by denying them the right to give their ballots to a volunteer. The judges also concluded there was racial motivation in the decision to enact the law by the Republican-controlled Legislature.
The court also noted there was no actual evidence of fraud in Arizona.
Brnovich, in his new filing, does not dispute that. But he instead cited what happened in the 2018 congressional race in North Carolina where the Board of Elections found “overwhelming evidence” of a coordinated and illegal campaign by the Republican contender and his supporters to collect and then refuse to deliver absentee ballots to be counted.
And that, Brnovich said, shows what can go wrong.
“Fraudulent ballot harvesting thus can − and probably has − left hundreds of thousands of voters disenfranchised,” he said in the new filing.
“Preventing such harms is of paramount importance to the State of Arizona (and all other states),” the brief reads, saying the court’s majority opinion “denies Arizona the power to protect its citizens from the harms that voters in North Carolina suffered.”
Fletcher’s opinion does note what happened in North Carolina. But the judge pointed out that what occurred there — the refusal to deliver collected ballots — already was illegal under Arizona law before 2016.
Brnovich, however, hinted that perhaps there was some political bias by the majority.
He pointed out that the opinion says, twice, that the North Carolina fraud `was perpetrated by a Republican political operative.” At the same time, Brnovich said, the majority said that ballot harvesting in Arizona was primarily conducted by Democrats.
“The Supreme Court could easily disagree with the majority’s apparent view that the only potential risk of ballot harvesting fraud arises from Republicans and not Democrats,” the legal brief read.
Fletcher, in the majority ruling, acknowledged that the trial judge had concluded that the Arizona Republican Party has “not significantly engaged in ballot collection as a Get Out The Vote strategy.” But he said that doesn’t tell the whole story.
“The base of the Republican Party in Arizona is white,” he wrote. “Individuals who engaged in ballot collections in past elections observed that voters in predominantly white areas were not as interested in ballot collection services.”
A federal appeals court has rebuffed yet another attempt to void the state’s 2016 ban on so called “ballot harvesting.”
In a unanimous decision, a three-judge panel of the 9th Circuit Court of Appeals rejected arguments by Democrat activist Rivko Knox that making it a felony for her to take someone else’s ballot to polling places interfered with her First Amendment rights. And the judges were no more sympathetic to her contention that the Arizona law illegally infringed on the right of the federal government to regulate who can deliver mail.
This is the second appellate court defeat for those who are opposed to the law. The judges have previously rejected arguments that the statute banning ballot harvesting is legally unjustified because there is no evidence that the practice resulted in fraud.
The fight is over what had been the practice of some political and community groups of going door-to-door ahead of elections to ask people if they already had mailed back their early ballots. If not, the volunteers would offer to deliver them, especially if the election were only a few days off and there was no guarantee that mailing them would get them to county election officials on time.
In 2016 the Republican-controlled Legislature voted to make the practice a felony, with penalties of up to a year in state prison and a $150,000 fine. Backers said they were concerned that allowing just anyone to pick up ballots could lead to fraud or mischief.
When the first challenge was rebuffed by a federal judge, Knox came back with a new legal theory.
In essence, she argued, the collection of early ballots is “expressive conduct” protected by the First Amendment. The message, Knox said, was her support of widespread voting by mail and that voting is so fundamental that she is committed to helping people exercise their right to vote no matter for whom they vote.
But appellate Judge Sandra Ikuta, writing for the court, said Knox failed to prove that the conduct of collecting ballots “would reasonably be understood by viewers as conveying any of these messages or conveying a symbolic message of any sort.”
Ikuta, a President George W. Bush appointee, was no more sympathetic to Knox’s claim that she was engaged in delivery of something newsworthy entitled to First Amendment protections. The court acknowledged that early ballots, once filled out, do constitute the speech of the voters, that does not mean that Knox, had a constitutional right to deliver that “speech.”
A federal judge late Friday slapped down a bid by a Democrat activist to void a 2016 law that makes “ballot harvesting” illegal and allow the practice to resume for Tuesday’s primary.
Judge Douglas Rayes acknowledged that once an early ballot is put into an envelope it becomes “mail.” And he said federal law specifically allows private individuals to deliver mail as long as they do not charge a fee.
But Rayes rejected arguments by Rivko Knox that the ban on individuals delivering someone else’s ballot to polling places runs afoul of that federal law. He said the purpose of that law was simply to prevent others from competing financially with the U.S. Postal Service and undermining its revenues.
“Congress did not intend to supplant state control over the handling of early ballots,” the judge wrote.
Rayes was no more convinced by her argument that prohibiting her — and others — from collecting someone else’s ballots interfered with their First Amendment right to “facilitate” the speech of others, specifically their vote.
“She cites no case, and the court has found none, holding that an individual has a First Amendment right to provide gratuitous letter delivery services to third parties,” Rayes said.
Until 2016 there was no restriction on who could collect ballots. That resulted in some civic groups and others going around neighborhoods to ask residents whether they remembered to mail back the early ballots they had requested.
If they had not, group members would offer to carry them to polling places, especially if the election were just a few days away and putting the ballots in the mail would not guarantee they would get delivered on time.
That year the Republican-controlled Legislature voted to make the practice a felony, punishable by up to a year in prison and a $150,000 fine. Proponents said allowing others to handle ballots created an opportunity for fraud, including that groups doing the collection could choose whether to deliver a ballot based on how they believed the individual had voted.
Attorney Spencer Scharff, representing Knox, noted there has never been a proven case of that occurring in Arizona. And he said existing law already makes it a felony to tamper with someone else’s ballot.
Rayes also faulted Knox for waiting until this summer, just weeks before the election, to challenge the law.
He said she clearly was aware of the provisions, having testified against the bill in 2016. And Rayes said an earlier filing would have given him “more time to consider these important constitutional questions” ahead of Tuesday’s election.
But Rayes gave no indication that his decision would have been different even if there were more time for legal arguments.
From left are Secretary of State Katie Hobbs and Attorney General Mark Brnovich
Secretary of State Katie Hobbs is urging the U.S. Supreme Court to spurn a request by Attorney General Mark Brnovich to defend Arizona’s ban on “ballot harvesting.”
In legal papers filed with the nation’s high court, Hobbs said the 9th Circuit Court of Appeals got it right when it concluded that the law, approved by the Republican-controlled legislature in 2016, was adopted at least in part to discourage minority voting. She also noted the appellate judges found that it does, in fact, have a disproportionate effect on the ability of minorities to cast a ballot.
But attorney Jessica Ring Amunson, representing the Democrat secretary of state, told the justices that there’s an even more basic reason they should send Brnovich packing.
Amunson said it was the secretary of state’s office that had been sued, years ago, before Hobbs held the office. And she said that means it is Hobbs, the current holder of the office, who decides whether to appeal that 9th Circuit ruling.
In this case, Hobbs said she believes the judges got it right, not only in voiding the ballot harvesting law but also in concluding that challengers were correct in demanding that votes should be counted, even if cast in the wrong precinct.
“The attorney general cannot maintain a lawsuit in the guise of an appeal by himself or the state that he could not maintain directly on behalf of the secretary,” Amunson wrote.
An American flag waves in front of the Supreme Court on Capitol Hill in Washington, Monday, June 29, 2020. (AP Photo/Patrick Semansky)
The legal filing is more than a philosophical dispute between Hobbs and Brnovich. It is the latest in what has become open hostility between the two about what election laws are legal and defensible.
And it has political implications.
They are the top statewide officeholders within their respective parties other than Republican Gov. Doug Ducey. And with Ducey unable to seek a third term in 2022, that potentially pits each of them against the other in the gubernatorial race.
Politics aside, the fight is over two issues related to how elections are conducted in Arizona.
The first is that 2016 law, HB 2023, that made it a crime for anyone to retrieve someone else’s already voted early ballot for delivery to polling stations. Republicans said it created the potential for fraud.
But the 9th Circuit said there was no such evidence. More to the point, the judges said the law was more likely to affect minority voters who did not have reliable mail service and were more dependent on civic and political groups to get their ballots delivered on time to be counted.
The second surrounds the fact that some people show up at the wrong polling place on Election Day.
Challengers, led by the Democratic National Committee, said their votes for offices that were listed on what would have been the ballot at the correct polling place — like statewide races for Congress and governor — should be counted.
Here, too, the appellate judges found this was more likely to affect minorities as polling places were more often changed from election to election in the areas they live.
Anyway, Hobbs said, there is nothing in state law precludes counting of out-of-precinct votes. What it is, she said, is a matter of policy put into the Election Manual by the secretary of state — in this case, her Republican predecessor Michelle Reagan.
That, said Hobbs, allows her to conclude — as did the challengers and the 9th Circuit — that the ban on counting out-of-precinct votes is “discriminatory and unjustifiable,” meaning she can change it unless or until the legislature rules otherwise.
“Arizona law grants the secretary discretion to choose between permissible alternatives for counting ballots when promulgating the (Election) Manual,” she argued.
And Hobbs also pointed out that, even under the current system, some counties already operate “voting centers” where anyone from anywhere in the county can cast a ballot.
But a key to her arguments is the question of who gets to decide whether to appeal a ruling that went against the secretary of state’s office.
“Secretary Hobbs — the official charge under state law with asserting the state’s interest in elections — has no interest in keeping the out-of-precinct policy or HB 2023 for future elections,” her attorney wrote. Therefore, she said the justices should ignore the request by Brnovich to review the 9th Circuit ruling.
Hobbs is not battling just Brnovich in trying to convince the nation’s high court to leave the 9th Circuit ruling intact.
The Arizona Republican Party filed its own legal papers asking the justices to take up the issue. Attorneys for the GOP said it was wrong of the appellate court to conclude that the ban on ballot harvesting was illegal and that votes not cast in the right precinct should be counted simply because they had a disparate effect on minorities.
But the arguments also acknowledged that any change ordered by a court in election procedures based on claims that it would be helpful to minorities could be bad for Republican candidates.
“If this decision is allowed to stand, the federal courts will become instruments of an aggressive campaign to dramatically reshape American democracy to favor one political party,” wrote attorney Michael Carvin.
But Hobbs told the justices to simply ignore what the GOP was saying. She said they lack legal standing to appeal the 9th Circuit ruling “because they were not ordered to do or refrain from doing anything.”
Voters deliver their ballot to a polling station, Tuesday, Nov. 3, 2020, in Tempe, Ariz. (AP Photo/Matt York)
The question of whether Arizona gets to keep its ban on “ballot harvesting” could turn on what was in the mind of a now-ejected state legislator who first proposed the law and how that affected his colleagues.
During a two-hour hearing Tuesday, some of the justices of the U.S. Supreme Court were told that it was then-Sen. Don Shooter who first attempted in 2011 to make it a crime for anyone to collect anyone else’s voted ballot and take it to polling places. That came a year after Shooter had won his 2010 election with just 53% of the vote — receiving 83% of the non-minority vote but only 20% of the Hispanic vote.
It took five more years for lawmakers to actually pass the ballot harvesting law. But when it was challenged, Judge William Fletcher of the 9th Circuit Court of Appeals cited the early effort and concluded Shooter was “in part motivated by a desire to eliminate what had become an effective Democratic GOTV strategy.”
And Fletcher said nothing really changed between 2011 and 2016.
“Republican legislators were motivated by the unfounded and often far-fetched allegations of ballot collection fraud made by former Sen. Shooter,” the judge wrote.
Attorney General Mark Brnovich, defending the statute before the high court, told the justices that’s irrelevant.
Mark Brnovich
“You cannot impugn motive to one legislator to a group of 90 independent, co-equal actors spread across two houses in the legislature,” he said. And Brnovich said the law is a legitimate effort by lawmakers to minimize the possibility of fraud or coercion when political groups go door-to-door and seek to take someone’s ballot.
Brnovich also said there’s nothing inherent in the law that decreases the opportunity for minorities to vote which he said is the test under Section 2 of the Voting Rights Act, regardless of whether there is some evidence that minorities are more likely to depend on someone else to take their early ballots to the polls.
But his arguments weren’t helped by Michael Carvin who is representing the Arizona Republican Party, which was granted the right to intervene to help defend the 2016 law. He was asked by Justice Amy Coney Barrett why his client is in the case.
“Because it puts us at a competitive disadvantage relative to Democrats,” he acknowledged.
“Politics is a zero-sum game,” Carvin continued. “And every extra vote they get through unlawful interpretations of Section 2 hurts us. It’s the difference between winning an election 50 to 49 and losing an election.”
That, in turn, goes to another finding by the 9th Circuit last year in voiding the law. Fletcher said the record shows that prior to 2016 minorities were more likely than non-minorities to get someone else to turn in their ballots. By contrast, Fletcher wrote, “the Republican Party has not significantly engaged in ballot collection as a get-out-the-vote strategy.”
There are some indications that the conservative justices may defer to the decision of Arizona lawmakers in enacting the 2016 law. But there are facts that complicate the issue.
One is that there was no actual evidence of fraud cited by Arizona lawmakers in enacting the law. In fact, statutes already on the books made it a crime to refuse to turn in someone else’s ballot.
But then-Rep. J.D. Mesnard, R-Chandler, argued that is irrelevant.
“What is indisputable is that many people believe it’s happening,” he told colleagues during floor debate. “And I think that matters.”
Don Shooter
And Brnovich cited the 2005 recommendations of the Commission on Federal Elections Reform, co-chaired by former President Jimmy Carter, a Democrat, which said states should prohibit outsiders from handling absentee ballots of others.
Anyway, Brnovich told the justices, it’s not like this law — and the other challenged one that says ballots cast in the wrong precinct are not counted — significantly impact the ability of minorities to vote.
He acknowledged there are “slight statistical differences” in how both laws affect minorities. But Brnovich said the court needs to look at the totality of the circumstances.
“No one was denied the opportunity,” he said.
He said the state provides many ways of voting, including early voting and at voting centers ahead of Election Day. And the state has a “no excuse absentee balloting,” meaning that anyone can ask for an early ballot by mail.
“So there are a whole plethora of options in ways for people to exercise their right to the franchise,” Brnovich said.
Chief Justice John Roberts specifically asked attorney Jessica Ring Amunson why that report by the commission that Carter co-chaired does not provide enough reason for lawmakers to ban ballot harvesting. She represents Secretary of State Katie Hobbs who has taken the position that both the ban on ballot harvesting and the prohibition on counting votes cast in the wrong precinct violate federal law.
“States can have an interest in securing their elections through limiting ballot collections,” Amunson responded. “But when you look at the particular fact here, that does not appear to have been Arizona’s interest.”
Bruce Spiva, attorney for the Democratic National Committee, which filed the original suit, underlined the point, saying there’s nothing in the legislative record to suggest lawmakers were persuaded by anything in that commission report. And he emphasized that legislators also had no evidence of voter fraud before enacting the 2016 law.
Amunson said there is something the court does need to consider.
“What we have is a record that shows that Native Americans and Latinos in Arizona rely disproportionately on ballot collection and white voters do not,” she said. And that, Amunson said, comes back to Shooter.
“The entire purpose of introducing the law by Sen. Shooter was to keep Hispanics in his district from voting and was premised on far-fetched racially tinged allegations that Latinos in the district were engaging in fraud with respect to ballot collection,” Amunson said.
Shooter, who later was elected to the state House, is no longer a legislator. He was expelled by his colleagues in 2018 after being accused of violating policies against sexual harassment.
Amunson also told the justices they should take note the admission by Carvin about the political nature of this legal fight.
“Candidates and parties should be trying to win over voters on the basis of their ideas, not trying to remove voters from the electorate by imposing unjustified and discriminatory burdens,” she said.
There was some indication that the justices could end up with a split decision on the two issues.
On one hand, they noted, the 2016 law changed long-standing practices allowing ballot harvesting. That might be considered an affirmative violation of the Voting Rights Act.
By contrast, they noted the policy of counting only the votes cast at the right precinct dates back to 1970. And Brnovich argued that is necessary to properly administer the voting system.
He also said that the extent of the impact of that law is minimal, saying that in the 2016 election there were only 3,970 ballots that were rejected because they were cast in the wrong precinct out of more than 2.6 million votes cast by all methods, including early and day-of voting.
But Amunson said the important thing for the justices to consider is the evidence that minority voters were twice as likely to have their ballots rejected because of being in the wrong precinct than white voters.
Prosecutors are seeking a one-year prison sentence for a school board member in southern Arizona for illegally collecting four early ballots during the 2020 primary election.
But if probation is imposed instead, prosecutors said the judge should then enforce a provision of Guillermina Fuentes’ plea deal that bars her from holding public office while on probation. Fuentes and another woman, Alma Juarez, were scheduled to be sentenced Thursday afternoon on a ballot abuse conviction in Yuma, but the hearing has been postponed until Sept. 1.
Guillermina Fuentes
Authorities say Fuentes and Juarez participated in “ballot harvesting.” That’s a practice once used by both political parties to boost turnout but was made illegal by a 2016 state law that barred anyone but a family member or caregiver from returning early ballots for another person. It’s the only case filed so far by the state attorney general under the law, which the U.S. Supreme Court upheld last year.
Authorities say Fuentes, a former San Luis mayor, ran a sophisticated operation using her status in Democratic politics in the Arizona border city to persuade voters to let her gather and, in some cases, fill out their ballots. But the crime she admitted in court last month does not involve filling out ballots or any broader efforts.
Fuentes and Juarez each pleaded guilty to a charge of ballot abuse, acknowledging they collected early ballots for people who weren’t family members, didn’t live with them or weren’t receiving care from them.
Fuentes’ conviction is a felony punishable by as little as probation or as much as two years in prison. Juarez’s conviction is a misdemeanor, and under her plea agreement, if she has cooperated as promised she will be sentenced to probation and prosecutors will not seek jail time.
Three other felony charges, accusing Fuentes of filling out one voter’s ballot and forging signatures on some of the four ballots she illegally returned, were dismissed.
Republicans repeating unsupported claims that President Donald Trump would have been reelected if not for widespread voting fraud have cited this case as part of a broader pattern in battleground states, but the evidence suggests it didn’t extend beyond small-town politics.
Attorney General’s Office investigation records obtained by the Associated Press through a public records request show that fewer than a dozen ballots could be linked to Fuentes, not enough to make a difference in all but the tightest local races.
The office of Attorney General Mark Brnovich, a Republican seeking his party’s U.S. Senate nomination, provided the records after delays of more than 15 months.
Fuentes and Juarez were seen with several mail-in envelopes outside a cultural center in San Luis on the day of the 2020 primary election, according to reports from investigators. The ballots were taken inside and dropped in a ballot box.
Fuentes was recorded on video by a write-in candidate who called the Yuma County sheriff.
An investigation was launched that day, and about 50 ballots checked for fingerprints, which were inconclusive. The investigation was taken over by the attorney general’s office within days, with investigators collaborating with sheriff’s deputies to interview voters, Fuentes and others.
Attorney General Mark Brnovich will get one last chance to defend the legality of an Arizona law outlawing “ballot harvesting.”
The U.S. Supreme Court on Thursday agreed to let Brnovich try to convince them that a lower court ruling declaring the ban is illegal. The justices set March 2 for the hearing.
Just because the court agreed to take the case does not mean the ban will be upheld. But it does take at least four of the nine justices to be interested enough in the issue to have it be one of the few cases they actually take each year.
Brnovich has laid out for the justices why he believes the 9th Circuit Court of Appeals got it wrong last year when it declared that the state acted illegally in making it a crime to return someone else’s early ballot. He contends the state had a good reason to act in a way to prevent the potential for fraud and intimidation of voters by political operatives who were collecting these ballots.
At the heart of the issue is that most Arizonans receive early ballots which can be filled out and mailed back or delivered to polling places on Election Day.
Political and civic groups had for years gone into neighborhoods, asking people if they have returned their ballots and, if not, offering to take it to polling places on their behalf.
Republican legislators voted in 2016 to make that a felony, concluding the practice created too many opportunities for mischief. They did agree for exceptions for family members, others in the household and caregivers.
During the debate though, proponents could not cite a single confirmed incident where a ballot was altered or did not get delivered. Brnovich, in his legal briefs, told the high court that is irrelevant.
“Prohibiting unlimited third-party ballot harvesting is a commonsense means of protecting the secret ballot and preventing undue influence, voter fraud, ballot tampering, and voter intimidation,” he wrote.
And Brnovich rejected the contention that the law is simply an attempt by Republicans who control the Legislature to get a political edge. He pointed to the 2005 recommendations of the Commission on Federal Elections Reform, co-chaired by former President Jimmy Carter, a Democrat, that said states should prohibit outsiders from handling absentee ballots of others.
“There’s 20 states that have similar measures,” Brnovich said.
Anyway, Brnovich said, there are exceptions on who can handle ballots, ranging from election officials and mail carrier to family and household members and caregivers.
The 9th Circuit Court of Appeals did not buy that logic, with the majority concluding that the law was “racially motivated” and designed to suppress minority votes. And Judge William Fletcher, a President Clinton appointee, writing for the majority, said the record shows it has had that effect.
In reaching that conclusion, Fletcher cited comments by then-Sen. Don Shooter, R-Yuma, who attempted to get colleagues to enact a similar law in 2011. That was after he won his 2010 election with just 53% of the vote — receiving 83% of the non-minority vote but only 20% of the Hispanic vote.
Fletcher said Shooter was “in part motivated by a desire to eliminate what had become an effective Democratic GOTV strategy.” And he said that, in finally enacting the laws in 2016, “Republican legislators were motivated by the unfounded and often far-fetched allegations of ballot collect fraud made by former Sen. Shooter.”
More significant, Fletcher said the record from the trial shows that prior to the 2016 law minorities were more likely than non-minorities to get someone else to turn in their ballots.
“The district court found that, in contrast, the Republican Party has not significantly engaged in ballot collection as a Get Out the Vote strategy,” Fletcher wrote.
“The base of the Republican Party in Arizona is white,” he continued. “Individuals who engaged in ballot collection in past elections observed that voters in predominantly white areas were not as interested in ballot-collection services.”
In his court filings, Brnovich did not dispute what the 9th Circuit said was evidence of historical racism in Arizona. But he said most of the incidents cited by the appellate court are ancient history, with some going back to territorial days.
And Brnovich said the appellate judges ignored other non-racial reasons why minorities are more likely impacted by ballot harvesting laws, including poverty, employment, home ownership, health and how they have their mail delivered.
While the 9th Circuit found the law illegal, it has allowed the state to continue to enforce it pending Supreme Court review. That is what allowed Brnovich to get indictments in late December of two Yuma women who are accused of collecting four ballots during the state’s August primary election and putting them in a ballot box where they were counted.
Arizona is entitled to make “ballot harvesting” a crime despite a federal law that allows anyone to deliver a letter, the state’s legal defenders are arguing.
In new legal filings, Joseph La Rue, an assistant attorney general, acknowledged there is a federal statute that spells out that federal law “shall not prohibit the conveyance or transmission of letters or packets by private hands without compensation.” What makes that significant is that challengers say once someone puts an early ballot into an envelope and gives it to someone else to take to the polls, it becomes “mail” which the state cannot regulate.
But La Rue is telling U.S. District Court Judge Douglas Rayes that those seeking to void the 2016 state statute are misreading that federal law.
He said all it does is create a “narrow exception” to the monopoly the U.S. Postal Service has in delivering mail. Specifically, he said it says federal law cannot bar the private delivery of mail.
“There is no general, freestanding authorization – let alone federally protected right – for individuals to carry any piece of mail (or, in this case, ballots that are not mail) unencumbered by state regulation,” La Rue said. And he said the U.S. Constitution gives states broad power to regulate how elections are conducted.
Hanging in the balance is whether the state can enforce the 2016 law which makes it a felony for anyone to handle anyone else’s voted or unvoted ballot. Violators can be sentenced to a year in state prison and a $150,000 fine.
The practice at issue involves civic and political groups who have previously gone door-to-door into neighborhoods ahead of elections to see if residents have returned the early ballots they have requested. If not, they offer to bring them directly to polling places, especially if there is a chance that a ballot put in the mail will not reach county officials by election day.
Republican lawmakers said this creates an opportunity for fraud, with those doing the collection making a decision on which ballots to deliver and which to trash based on how they believe the person voted.
Rep. J.D. Mesnard, R-Chandler, now House speaker, conceded during debate at the time there was no evidence anyone was engaging in such a practice. But he said what is important “is that many people believe it’s happening.”
Rayes dismissed an earlier lawsuit challenging the law on the basis that it has a disparate effect on minorities.
This new one, brought on behalf of Rivko Knox of the League of Women Voters, argues that the Arizona statute is precluded by the federal law saying anyone can deliver mail as long as there is no charge.
La Rue, in the new court filing, called it a “novel” theory. But he told Rayes there is no conflict between the state law and the federal one.
“Nothing in (federal law) creates an affirmative right for individuals to collect anything, let alone other voters’ early ballots that have never been submitted to the Postal Service in the first place and are not required to be submitted by mail,” he wrote. And La Rue said the law creates no “express right” to deliver mail free of charge “but merely exempts citizens from federal penalties that otherwise would apply to the private carriage of mail.”
La Rue also told Rayes there’s another reason to reject the challenge.
He said Knox and other opponents have known about the law since it was adopted two years ago. In fact, he said, Knox, who said she has previously helped deliver early ballots, actually testified against it when it was being considered.
“If plaintiff believed that she was suffering irreparable harm, she could have brought her lawsuit in 2016, or 2017, or even early 2018,” La Rue said. “But she did not, waiting instead of the 2018 election season to begin in earnest.”
And he said that Knox offers “only the flimsiest of excuses” for the delay, citing a statement she made that she “got busy doing other things.”
La Rue said it would be wrong to change the rules on early ballots this close to the election, noting they go out 10 days before the hearing he has set for Aug. 10.
The sun rises behind the Supreme Court on Capitol Hill in Washington, Monday, June 29, 2020. (AP Photo/Patrick Semansky)
It’s not just the future of whether Arizona gets to keep its ban on “ballot harvesting” that the U.S. Supreme Court will decide this week.
Hanging in the balance could be how far Arizona — and other states — get to go in enacting new restrictions on registration and voting, particularly when they are found to have disparate effect on minorities.
On paper, the justices are looking at the simple question of whether the state can regulate who can take someone else’s voted early ballot to a polling place. That had been the practice of some civic groups in Arizona for years.
They would go door to door and ask people if they had remembered to return their early ballot. And, given that a ballot has to be received by 7 p.m. on Election Day, they offered to take it to a polling place rather than risk it not arriving on time.
In 2016, however, the Republican-controlled legislature voted to make that a felony. The law has only a handful of exceptions, like family members, people living in the same household and caregivers.
Proponents argued that this would prevent fraud.
But during legislative debate supporters could not cite a single instance of someone’s early ballot being stolen, manipulated or discarded. In fact, J.D. Mesnard, then a state representative from Chandler and now a senator, argued that it’s irrelevant whether there is fraud or not.
J.D. Mesnard
“What is indisputable is that many people believe it’s happening,” he said. “And I think that matters.”
The state and national Democratic parties sued and a trial judge upheld the law.
But in a divided decision, a majority of the 9th Circuit Court of Appeals concluded that what actually was behind the law was a desire of the GOP majority in the legislature to suppress minority votes. And Justice William Fletcher, an appointee of President Clinton, writing for the majority, said the record shows it had that effect.
What makes that particularly relevant is the current debate in Arizona and elsewhere on legislation to alter registration and voting procedures.
For example, one measure already approved this year by the Republican majority would remove people from the permanent early voting list if they did not cast an early ballot during two successive election cycles.
Democrats argued this would have a harsher effect on minorities, saying they often are the ones who come out and vote only when there are issues of interest. And that, they said, occurred this year with a record turnout.
Another effort would have required voters to provide certain identification when they send in early ballots. And a third would have effectively outlawed early ballots, saying people could still get them by mail but would have to turn them in at a polling place.
All that goes to a key question before the high court: How far can a state go in the name of election security — especially when there is no proof of a problem — when there is evidence that minorities are more likely to be affected.
In this case, Fletcher said the record from the trial court showed that, prior to the 2016 law, minorities were more likely than non-minorities to get someone else to turn in their ballots.
“The district court found that, in contrast, the Republican Party has not significantly engaged in ballot collection as a Get Out the Vote strategy,” he wrote.
“The base of the Republican Party in Arizona is white,” Fletcher continued. “Individuals who engaged in ballot collection in past elections observed that voters in predominantly white areas were not as interested in ballot-collection services.”
That, in turn, relates to Section 2 of the Voting Rights Act. It bars enactment of any voting practice of procedure which results in “denial or abridgment” of the right to vote on account of race or color.
Mark Brnovich
Attorney General Mark Brnovich, in defending the law, said there is nothing inherent in the ballot harvesting statute that decreases the opportunity for minorities to vote. He said that is the test under Section 2, regardless of whether there is some evidence that minorities are more likely to depend on someone else to take their early ballots to the polls.
He acknowledged there are “slight statistical differences” in how the law affect minorities. But Brnovich said the court needs to look at the totality of the circumstances.
“No one was denied the opportunity,” he said.
He said the state provides many ways of voting, including early voting and at voting centers ahead of Election Day. And the state has a “no excuse absentee balloting,” meaning that anyone can ask for an early ballot by mail.
“So there are a whole plethora of options in ways for people to exercise their right to the franchise,” Brnovich said.
But there is a political side to all of this.
The Arizona Republican Party was granted the right to intervene to help defend the 2016 law. That led to a question by Justice Amy Coney Barrett about why his client is in the case.
“Because it puts us at a competitive disadvantage relative to Democrats,” he acknowledged.
“Politics is a zero-sum game,” Carvin continued. “And every extra vote they get through unlawful interpretations of Section 2 hurts us. It’s the difference between winning an election 50 to 49 and losing an election.”
The justices actually have two Arizona laws before them.
Also at issue is the legality of a state statute that says only votes cast at the proper precinct are counted. Challengers said there is no reason to ignore votes that would be legal regardless of where they were cast, like for a president or statewide office.
Brnovich argued that is necessary to properly administer the voting system.
He also said that the extent of the impact of that law is minimal, saying that in the 2016 election there were only 3,970 ballots that were rejected because they were cast in the wrong precinct out of more than 2.6 million votes cast by all methods, including early and day-of voting.
But Jessica Ring Amunson, representing challengers, said the important thing for the justices to consider is the evidence that minority voters were twice as likely to have their ballots rejected because of being in the wrong precinct than white voters.
In this April 23, 2021, file photo, members of the Supreme Court pose for a group photo at the Supreme Court in Washington. Seated from left are Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, Standing from left are Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett. (Erin Schaff/The New York Times via AP, Pool)
Arizona is going to get to keep its laws against “ballot harvesting” and counting only votes cast within the proper precinct.
In a 6-3 ruling, the U.S. Supreme Court concluded the provisions of the 2016 law do not violate the Voting Rights Act.
The majority concluded that there was no statistical evidence presented showing that requiring people to handle their own ballots was more likely to affect minorities than non-minorities. At best, the court concluded, the record showed that, prior to the 2016 law, minorities were more likely than others to return their early ballots with the assistance of someone else.
There was evidence that minorities were more likely to cast their ballots in the wrong precinct.
But Justice Samuel Alito, writing for the majority, said the data from the 2016 election showed that a little more than 1% of Hispanic voters, 1% of African-American voters, and 1% of Native American voters who voted on Election Day cast an out-of-precinct ballot. For non-minority voters, he said the rate was around 0.5%.
“A procedure that appears to work for 98% or more of voters to whom it applies – minority and non-minority alike – is unlikely to render a system unequally open,” Alito said. And that, he said is the test under Section 2 of the Voting Rights Act.
“The mere fact that there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote,” he wrote. “And small disparities should not be artificially magnified.”
Alito acknowledged that, in enacting the ban on ballot harvesting, state lawmakers had no actual evidence of fraud. But he said that is irrelevant.
“Third-party ballot collection can lead to pressure and intimidation,” Alito continued.
“It should go without saying that a state may take action to prevent election fraud without waiting for it to occur and be detected within its own borders,” he continued. “Section 2’s command that the political processes remain equally open surely does not demand that a state’s political system sustain some level of damage before the legislature can take corrective action.”
The July 1 ruling does more than just uphold the two Arizona laws. It also appears to give additional leeway to states to enact laws that proponents say are designed to prevent fraud even when there are claims the purpose behind them is to suppress minority voting.
But Alito was careful to say that the ruling does not establish a test that the court will use in the future to determine whether other laws, in Arizona or elsewhere, violate the Voting Rights Act.
“As this is our first foray into the area, we think it sufficient for present purposes to identify certain guideposts that lead us to our decision in these cases,” he wrote.
But Justice Elena Kagan, in a dissent for herself and two of her colleagues, said the majority ruling undermines the Voting Rights Act and the rights it provides.
“What is tragic here is the court has (yet again) rewritten – in order to weaken – a statute that stands as a monument to America’s greatness and protects against its basest impulses,” she wrote. “What is tragic is the court has damaged a statute designed to bring about ‘the end of discrimination in voting.’ ”
She also said the ruling comes “at a perilous moment for the nation’s commitment to equal citizenship.”
Kagan noted that many states are moving to make it harder to register to vote and easier to purge voters from the rolls. And she specifically cited a new Georgia law that makes it illegal for political organizations to give out food and water to those waiting in line to vote.
“Chances are that some have the kind of impact the (Voting Rights) Act was designed to prevent – that they make the political process less open to minority voters than to others,” she wrote.
But Alito said he and his colleagues find nothing in the Arizona statutes that interferes with the ability of minorities to have equal opportunity to vote, which is what he said the federal law requires.
It starts with the 2016 law that makes it a crime to handle someone else’s ballot.
The practice had been used for years by some groups who would go door-to-door to see if people who had received early ballots in the mail had remembered to mail them back. With a hard-and-fast deadline of 7 p.m. on Election Day for receipt, these groups would offer to deliver them so as not to miss the deadline.
The 2016 law subjects violators to a year in state prison. There are exceptions for family members, those in the same household and caregivers.
Challengers, including the Democratic Committee, filed suit alleging a “disparate impact” on minority voters and that the ballot-collection law was “enacted with discriminatory intent.”
U.S. District Court Judge Douglas Rayes said there was evidence that “some individual legislators and proponents were motivated in part by partisan interests.” That was based on testimony that Democrats and their allies had been more successful in these ballot-gathering efforts than Republicans.
But Rayes distinguished between partisan and racial motives – with the latter protected by the Voting Rights Act – though conceding that “racially polarized voting can sometimes blur the lines.”
That was overturned by a majority of the 9th Circuit Court of Appeals. But Alito said the appellate majority “misunderstood and misapplied Section 2 and that it exceeded its authority in rejecting the district court’s factual finding on the issue of the intent of Arizona lawmakers.”
He said the federal law is violated when the political processes “are not equally open” to participation by minorities “in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
Against that, Alito said the record shows that Arizona generally “makes it quite easy for residents to vote.”
For example, all Arizonans can vote by mail up to 27 days before an election with an early ballot, with no special excuse needed. There also is a law that allows any voter to ask to be sent an early ballot automatically in future elections.
State law also allows anyone to cast a ballot in person at an early voting location in each county.
On the issue of precinct voting, challengers said there is no reason not to count the votes that would be legal if cast in the right place, like for president or statewide office. But Alito said that “would complicate the process of tabulation and could lead to disputes and delay.”
Anyway, he said, Arizona makes accurate precinct information available to all voters, including a sample ballot sent to each household that identifies the polling location. And he said there is a website to provide voter-specific polling place information.
Alito said that voting necessarily requires some effort and compliance with some rules.
“Mere inconvenience cannot be enough to demonstrate a violation of Section 2,” he wrote. And Alito said requiring people to mail in or drop off their own early ballots at a polling place is simply one of the “usual burdens of voting” that is not illegal.
Editor’s note: This story was revised as more information became available.
Arizonans remain legally barred from taking someone else’s ballot to the polls, at least for this election.
Without comment, the U.S. Supreme Court on Friday agreed to review the decision of a federal appeals court which earlier this year had voided the state’s ban on “ballot harvesting” after concluding that the Republican-controlled legislature enacted the 2016 law with the intent of suppressing minority votes. That law makes it a felony, subject to one year in state prison and a $150,000 fine, to handle anyone else’s already voted ballot.
Judge Amy Coney Barrett, President Donald Trump’s nominee to the Supreme Court, meets with Sen. Mike Lee, R-Utah, not pictured, at the Capitol, Tuesday, Sept. 29, 2020 in Washington. (Stefani Reynolds/Pool via AP)
The only exceptions are for family members, others in the same household, caregivers, election workers and the postal service.
Friday’s decision does not necessarily mean the law will be overturned. But it does mean that at least four justices found sufficient merit to arguments by Republican Attorney General Mark Brnovich and the Arizona Republican Party that lawmakers, in enacting the law, had valid concerns about the possibility of fraud.
Friday’s decision also means the justices will review another part of the same 2016 law which says if someone votes in the wrong precinct, all of the votes that person cast are discarded. The appellate court said the state should count the votes that would have been legal had the person been at the right place, such as for a statewide office like governor.
The justices now need to set a date for a hearing, presumably one where Trump’s latest appointee, Amy Coney Barrett, will be sitting on the bench. A ruling may not come until June.
What’s behind the whole practice is the fact that most Arizonans receive early ballots. They can be filled out and mailed back or delivered to polling places.
But state law requires mailed ballots to be delivered no later than 7 p.m. on Election Day. That means anything dropped in a mailbox within a week or so may not get counted.
Political and civic groups have in recent years gone into neighborhoods, asking people if they have returned their ballots and, if not, offering to take the papers to polling places on their behalf. But Republicans, in approving HB 2023 to ban the practice in 2016, argued that presents too many opportunities for mischief.
During the debate, however, supporters of the ban did not cite a single confirmed incident where a ballot was altered or did not get delivered. In fact, then-Rep. J.D. Mesnard, R-Chandler, argued it’s irrelevant whether there is fraud or not.
“What is indisputable is that many people believe it’s happening,” he said. “And I think that matters.”
The state and national Democratic parties sued and a trial judge upheld the law.
But in a divided decision, a majority of the 9th Circuit Court of Appeals concluded that what actually was behind the law was a desire by the GOP majority in the legislature to suppress minority votes. And Justice William Fletcher, a nominee of President Clinton, writing for the majority, said the record shows it had that effect.
He said the change in law cannot be examined solely in a vacuum.
“For over a century, Arizona has repeatedly targeted its American Indian, Hispanic and African-American citizens, limiting or eliminating their ability to vote and to participate in the political process,” Fletcher wrote.
The judge cited extensive testimony at trial about the number of ballots collected and turned in both others. More significant, he said the record from the trial shows that before the law was enacted in 2016, minorities were more likely than non-minorities to get someone else to turn in their ballots.
“The district court found that, in contrast, the Republican Party has not significantly engaged in ballot collect as a Get Out the Vote strategy,” Fletcher said.
“The base of the Republican Party in Arizona is white,” he continued. “Individuals who engaged in ballot collections in past elections observed that voters in predominantly white areas were not as interested in ballot-collect services.”
Mark Brnovich
Brnovich, in his arguments to the high court, said the fact that there were no documented cases of fraud related to ballot harvesting is irrelevant.
“Prohibiting unlimited third-party harvesting is a commonsense means of protecting the secret ballot and preventing undue influence, voter fraud, ballot tampering, and voter intimidation,” he wrote.
And Brnovich rejected the contention that the law is simply an attempt by the Republicans who control the House and Senate, then and now, to get and keep a political edge. He pointed to the 2005 recommendations of the Commission on Federal Elections Reform, co-chaired by former President Jimmy Carter, a Democrat, that said states should prohibit outsiders from handling absentee ballots of others.
“There’s 20 states that have similar measures,” Brnovich said. And then there are the exceptions for family and household members and caregivers.
Brnovich also wants the justices to ignore one thing cited by Fletcher in the ruling: comments by then-Sen. Don Shooter, R-Yuma, who attempted to get colleagues to enact a similar law. That was after he won his 2010 election with just 53% of the vote — receiving 83% of the non-minority vote but only 20% of the Hispanic vote.
Fletcher said Shooter was “in part motivated by a desire to eliminate what had become an effective Democratic GOTV strategy.” And he said that, in finally enacting the laws in 2016, “Republican legislators were motivated by the unfounded and often far-fetched allegations of ballot collection made by former Sen. Shooter.”
Brnovich told the justices all that is irrelevant.
“Each legislator is an independent actor,” the attorney general wrote.
“It has long been settled that what motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it,” he said. “Anyway, Brnovich said, even if there is a correlation between race and political affiliation — and even if legislators are aware of that — there is no proof that Arizona lawmakers acted with racial motives.
Friday’s decision also is a setback for Secretary of State Katie Hobbs.
In her own legal filings with the Supreme Court, she pointed out that it was the secretary of state’s office that had been sued, years earlier, before she held the office. And Hobbs said that means she, as the current holder of the office, had sole authority to decide whether to appeal the 9th Circuit ruling.
Hobbs said she believes the appellate judges got it right. And she argued, unsuccessfully, that Brnovich cannot maintain a legal action to defend the law.
A Yuma County woman who was indicted last year for illegally returning four voted mail-in ballots that were not hers is facing three new felony charges.
The Arizona Attorney General’s Office announced October 5 that Guillermina Fuentes was indicted for voting another person’s early ballot in the August 2020 primary election. She was charged with conspiracy, forgery and a ballot abuse count.
Fuentes, 65, a Democrat, is a former mayor of the border city of San Luis. She serves as an elected board member of the Gadsden Elementary School District in San Luis.
Calls seeking comment from her attorney in the earlier case, Anne Chapman, were not immediately returned.
The new indictment alleges that Fuentes obtained and voted another person’s early ballot and forged their signature.
She and another San Luis woman were indicted in December on one count each of ballot abuse for returning four voted early ballots that did not belong to her or a family member in the 2020 primary election. Both have pleaded not guilty.
The Legislature passed the ban on so-called ballot harvesting in 2016. It bars anyone but a caregiver or family member from returning a mail ballot and carries a presumptive sentence of a year in prison. The U.S. Supreme Court upheld the law in a ruling released in July.
Arizona’s ban on “ballot harvesting” will remain in place, at least for the March 17 presidential preference primary.
In a brief order Tuesday, the 9th Circuit Court of Appeals granted the plea by Attorney General Mark Brnovich for the justices not to enforce their ruling last month which found the ban unconstitutional. That will give Brnovich the time to seek review by the U.S. Supreme Court.
Tuesday’s order also leaves intact a separate law which says that a person’s entire ballot is discarded if he or she votes in the wrong precinct on Election Day.
But Brnovich could face an uphill fight: The nation’s high court accepts only a small percentage of the cases it is asked to review.
The central issue relates to the fact that most Arizonans receive early ballots. They can be filled out and mailed back or delivered to polling places on Election Day.
With a hard-and-fast deadline of ballots being delivered by 7 p.m. on Election Day, some political and community groups had made it a practice to go door to door, especially in neighborhoods where they thought sentiment would run in their direction, offering to take unmailed ballots to polling places.
The Republican-controlled Legislature voted in 2016 to make that a felony.
In a divided decision last month the majority of the appellate court concluded lawmakers enacted the restriction with the goal of suppressing minority votes. And Justice William Fletcher, writing for the majority, said the record shows that HB 2023 had that effect.
Fletcher and the majority also brushed aside arguments that lawmakers were simply trying to preclude fraud, with collectors deciding which ballots to return and which to trash. He said that already was illegal before 2016 with existing laws that made it a crime to tamper with or refuse to deliver an early ballot.
What that left, he said, is the improper motive behind the law.
“Criminalization of the collection of another person’s ballot was enacted with discriminatory intent,” Fletcher wrote, a direct violation of not just the U.S. Constitution but also the Voting Rights Act. And he said that any distrust of third-party ballot collection that currently exists is “`because of the fraudulent campaign mounted by proponents of HB 2023.”
“To the degree that there has been any fraud, it has been the false and race-based claims of the proponents of HB 2023,” the judge said. “It would be perverse if those proponents, who used false statements and race-based innuendo to create distrust, could now use that very distrust to further their aims in this litigation.”
Tuesday’s stay by the appellate court came over the objections of the Democratic National Committee and the Arizona Democratic Party who had successfully sued to have the 2016 law voided. Their lawyers urged the court to rebuff Brnovich and implement the ruling immediately.
“Thousands more will be able to vote a mail-in ballot because they will be able to receive the assistance they need to deliver it to be counted,” wrote attorney Dan Barr.
“Absent such relief, these voters’ rights remain, at best, in limbo, or, at worst, wholly denied for yet another election,” he said. “The harm is real and irreparable.”
Very soon, the U.S. Supreme Court will decide the fate of Arizona elections and, particularly, the independence of people of color’s votes for years to come. A recent Supreme Court hearing to consider legal opinions for and against Arizona’s HB2023 was interesting, as justices appear to be inclined to support the arguments of Arizona Attorney General Mark Brnovich. At stake is the very integrity of our elections and the security of every American’s sacred right to vote. At issue is the concept of “ballot harvesting,” best described as a frequently and easily manipulated, fraud prone, voter suppression strategy that depends on virtually anonymous, highly aggressive, and unregulated unscrupulous third-party collection of ballots that largely belong to poor voters of color. Many of these patriotic victims are not well acquainted with the “Boss Tweed” or “Tammany Hall” electoral controls – or bullying – that has come to define and has led to the corruption of many urban electorates throughout America.
Jarrett Maupin
Thank God, in Arizona at least, we have an attorney general and a civil rights community that coalesced to remain one step ahead of cutthroat political special interests seeking to game our election process. Proponents of “ballot harvesting” argue that keeping other people’s hand on and entrusting submission of the secret ballot of people of color is the only way to make sure their voices are heard in an election. Absolute nonsense. What voter suppression exists in trusting communities of color, who have fought and shed their blood for the unfettered right to vote, to simply place their completed ballots safely back in their own mailbox for proper collection, you know, the same one that the ballots arrived in? The idea that random agents of various political machines have the right to go door to door interrogating voters of color about their political choices, inviting themselves to complete uncompleted ballots, and worst of all collecting and ultimately deciding if the high-jacked votes get counted at all is the very definition of voter suppression. People like Martin Luther King, Jr. and Fannie Lou Hamer, Arizona’s Lincoln Ragsdale and Opal Ellis, and modern day voting rights advocates did and do not risk their lives so that paid operatives are empowered to come along and sabotage or inhibit their children and grandchildren exercising the right to vote.
All over America, wherever “ballot harvesting” has been legalized, elections have been plagued with fraud and deceit. For example, in North Carolina, five white Republicans were indicted on felony charges for illegal ballot collection and conspiracy. This example of “ballot harvesting” resulted in a congressional election having results delayed by months and thousands of people of color being disenfranchised by a small group of people willing to tamper with ballots of people they felt they could manipulate. “Ballot harvesting” is not a Democrat problem or a Republican problem, it is an American problem that, apart from foreign nations interfering in American elections, represents the greatest threat to the integrity of our representative republic. The opponents of free and fair elections have gone from employing poll taxes, to undermining ID requirements at the polls, and have now settled on stealing, sweet talking, or flat-out prying ballots from the hands of voters of color in their unyielding quest to tell voters of color how to and whom for and when to cast their votes.
Arizona’s HB2023 does not suppress anyone’s right to vote. Sons and daughters, grandkids and pastors, caregivers and the like can still stick grandparents’ ballots in the mail. This law does not make it illegal for elections being a family affair, as good civics dictate they should be. What this law does do is keep the sacredness of the right to vote intact by making it a felony for strangers and hired thugs to strong arm, intercept, augment, or discard ballots mailed to communities of color that have struggled for so long and at such great cost to be able to vote in peace and with the same hallowed privacy enjoyed by white Americans since the days of the Pilgrims.
Brnovich is right to seek judicial relief and reconsiderations from the U.S. Supreme Court over the problem of “ballot harvesting”. By doing this, he is protecting historically vulnerable voters and making good on his oath as our state’s top civil rights enforcer to intervene – by any means necessary – to guarantee that the blood of civil rights leaders was not shed in vain in pursuit of one person, one vote. The Voting Rights Act must be strengthened and diligently defended, because the forces of voter suppression do not yield. “Ballot harvesting” is dangerous and we need only look at the problems and injustices it has caused around the country to understand why this sad practice has no place in Arizona and why the U.S. Supreme Court will find that prohibiting implementation is indeed constitutional and in voters’ best interest. As the iconic voting rights hero Rep. John Lewis once said, “The right to vote is precious, almost sacred. It is the most powerful nonviolent tool or instrument in a democratic society.” As such, ballots should NEVER EVER be trifled with by anyone, at any time, under any circumstances.
The Reverend Jarrett Maupin is a Baptist minister, civil rights activist, and a Democrat.
We use cookies on our website to give you the most relevant experience by remembering your preferences and repeat visits. By clicking “Accept”, you consent to the use of ALL the cookies.
This website uses cookies to improve your experience while you navigate through the website. Out of these cookies, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. We also use third-party cookies that help us analyze and understand how you use this website. These cookies will be stored in your browser only with your consent. You also have the option to opt-out of these cookies. But opting out of some of these cookies may have an effect on your browsing experience.
Necessary cookies are absolutely essential for the website to function properly. This category only includes cookies that ensures basic functionalities and security features of the website. These cookies do not store any personal information.
Any cookies that may not be particularly necessary for the website to function and is used specifically to collect user personal data via analytics, ads, other embedded contents are termed as non-necessary cookies. It is mandatory to procure user consent prior to running these cookies on your website.
Sign In
Free Newsletter
