9th Circuit Court halts voter registration

Brazil Vote Concept

Arizonans who want to vote this election now have only through Thursday to get signed up.

In an order issued late Tuesday, the 9th Circuit Court of Appeals concluded that U.S. District Court Judge Steven Logan, an appointee of President Obama, acted illegally when he extended the state’s voter registration deadline from Oct. 5 until Oct. 23.

“The district court’s order was an obvious abuse of discretion,” wrote the judges.

But two of the judges said it makes no sense to compound the problem by immediately halting all new registrations. Instead, they left the door open for two more days.

Potentially more significant, the order contains another provision that spells out that anyone who registered after Oct. 5 — as Logan allowed — will get to keep their right to vote on Nov. 3 despite missing the original deadline. The only requirement is that their registration forms must “reach county election offices by that Thursday night deadline.

So far, according to data compiled Tuesday by Hobbs’ office, there were 26,652 new names added to the registration list since Oct. 5. That includes 8,317 Republicans, 6,237 Democrats, 393 Libertarians and 11,705 not affiliated with any recognized political party.

On top of that, another 74,035 people used the window of opportunity to update their registrations. That can include changing parties and updating addresses.

Only Judge Jay Bybee, an appointee of President George W. Bush, dissented, saying that those who registered after the Oct. 5 deadline — what is in state law — should not be allowed to cast a ballot for the general election. But the majority said that an immediate and retroactive halt would only further complicate matters, forcing election officials to undo the registrations that already have come in the door.

The order came over the objection of Attorney General Mark Brnovich. He was willing to allow those who already registered to vote but sought an immediate cutoff of new signups.

Attorney Kory Langhofer, representing the Republican National Committee and the National Republican Senatorial Committee, filed his own objection.

Langhofer wanted the court to rule that anyone who signed up after Oct. 5 was ineligible to vote, even if they already had registered since that date. He said no decision has been made whether to seek review by the full 9th Circuit.

Logan issued his ruling earlier this month following a complaint by Mi Familia Vota and the Arizona Coalition for Change that the COVID-19 outbreak and the resultant travel and gathering restrictions imposed in March by Gov. Doug Ducey curtailed their ability to sign up new voters. He agreed to add an extra 2 1/2 weeks to help compensate.

At a hearing Monday, two of the appellate judges expressed doubts about the legality of Snow’s ruling. But rather than decide the issue, they directed the attorneys to work out something themselves.


9th Circuit dismisses suit seeking more days to vote


Residents of the Navajo Nation won’t get extra time to cast their ballots and be sure they are counted.

In a unanimous ruling Thursday, a three-judge panel of the 9th Circuit Court of Appeals did not dispute evidence presented by challengers that it takes longer for ballots to be mailed to reservation addresses than it does for people — non-Indians — not living on tribal lands. Ditto the reverse of the process of more time needed to get ballots from reservation address to county election offices.

Nor did they address other factors that can give reservation residents less time to consider their ballots, including the lack of mail delivery and financial hardships to get to the post office.

Instead, the judges said all that is irrelevant to the effort to challenge the law that requires ballots to be received by county election officials by 7 p.m. on Election Day to be counted.

They pointed out that the lawsuit was filed not by the tribe on behalf of all its members but instead by six individuals living on tribal lands. In fact, they noted, Navajo officials sent a letter to the attorneys for the plaintiffs saying it was wrong to say they were suing on behalf of the tribe.

And what that means, the judges said, is the plaintiffs had to prove that they, personally, were harmed by current deadline and are entitled to have their votes counted if they simply are postmarked by that time and date. But the court said the challengers did not do that.

“What is missing … is any allegation or showing as to, at a bare minimum, whether any of the plaintiffs intend to vote in this general election, and, if so, whether they intend to vote by mail,” the court wrote in the unsigned opinion. In fact, the judges said, there isn’t even any evidence that any of the plaintiffs are signed up for automatic receipt of an early ballot or whether they, personally, face challenges in terms of their location or other factors, including allegations that the U.S. Postal Service has curtailed mail service.

Nor is there any indication that any of the plaintiffs themselves lack home mail delivery, the need for language translation, lack of access to public transportation or the lack of access to a vehicle “such that the receipt deadline will harm their ability to vote in this election,” the court concluded.

“While we are sympathetic to the claimed challenges that on-reservation Navajo Nation members face in voting by mail, we lack jurisdiction because (Darlene) Yazzie and the other individual plaintiffs do not satisfy the irreducible constitutional minimum of standing” to bring this legal action, the court said.

That’s not the only problem the appellate court found with the lawsuit and the demand that ballots from a Navajo Nation address be counted if it meets the postmark deadline.

“Not everyone who resides on the reservation is a Navajo,” the court explained.

“Non-minority voters also reside on the reservation,” they continued. “And not every Navajo living on the reservation is an enrolled member of the Navajo Nation.”

What all that means, the judges said, is there is no way for county recorders to give the special treatment sought for Navajo Nation members — who are entitled to sue under the federal Voting Rights Act on allegations of discriminatory treatment — versus non-Native Americans who are not entitled to use the federal law to seek particular accommodations.

There’s a more practical consideration: The U.S. Postal Service does not always date-stamp items with the day and time they actually are posted.

And there’s something else. The judges said the lawsuit, filed just three weeks before the Nov. 3 general election, comes too late for them to consider and order major changes in how the state handles ballots and elections.

“We do not discourage challenges of voting laws that may be discriminatory or otherwise invalid, whenever they may arise,” the judges said.

But they pointed out that the deadline for receipt of ballots has been on the books in Arizona since 1997. And they said the U.S. Supreme Court has told federal judges that, absent unique circumstances, they “should ordinarily not alter the election rules on the eve of an election.”

There was no immediate response from those representing the challengers.

Nothing in Thursday’s ruling keeps others from mounting their own challenge to the ballot-receipt deadline. But the judges warned that any last-minute challenges like this one are likely to meet the same fate.


9th Circuit hears plea to extend voting deadline for Navajo residents

A sign points to a local polling station for the Arizona Democratic presidential preference election Tuesday, March 17, 2020, in Phoenix. (AP Photo/Ross D. Franklin)
A sign points to a local polling station for the Arizona Democratic presidential preference election Tuesday, March 17, 2020, in Phoenix. (AP Photo/Ross D. Franklin)

An attorney representing several Navajo Nation residents asked a federal appeals court Tuesday to give reservation dwellers more time to submit their ballots and have them counted.

Steven Sandven argued that Judge Murray Snow got it wrong last month when he concluded that the burdens on reservation residents in meeting the 7 p.m. Election Day deadline is no greater than that faced by residents of other rural areas of the state. As such, Snow concluded, the deadline does not violate the federal Voter Protection Act.

But Sandven told the appellate judges the test is whether Native Americans, as a “protected class” under federal law, have the same opportunity to vote as all other non-Indians in the state, regardless of where they live. The record, he said, shows that is not the case.

He said this is more than just the fact that mail to and from rural areas takes longer, leaving reservation residents less time to consider the issues than non-Indian voters before they have to send their ballots back.

For example, Sandven said, in Scottsdale there is one Election Day polling place for every 13.4 square miles versus one location on the Navajo Reservation for 306 miles.

On top of that, he said, there is no home delivery for most of the reservation, the distance to the post office “and the fact that many Navajo Nation members have insufficient funds to travel to a post office.”

All that, Sandven said, is that tribal members have less opportunity to exercise their right to vote than other voters.

“We don’t need to show that they have no opportunity to vote,” he said.

“There’s no dispute as to the nature of those conditions and the effect that those conditions have in terms of making it more difficult for these voters to access the ballot.”

But members of the three-judge panel hearing the case were not sure they can provide the relief he wants: requiring ballots from Navajo Nation addresses to be counted if they are postmarked by 7 p.m. on Election Day.

Judge Margaret McKeown said there’s no evidence that ballot envelopes actually get a postmark, despite an order to the U.S. Postal Service in a separate case out of New York to do so this year.

Even if they do, there’s the sorting question.

Assuming county recorders could figure out which ballots came from on-reservation addresses, there are, in fact, people who are not Native American who live there and who are entitled, based on their “protected status,” to more time to turn in their ballots.

Roopali Desai, who represents Secretary of State Katie Hobbs, told the appellate judges there are even more basic questions. It starts with the fact that the lawsuit filed on behalf of six members of the Navajo Nation names only Hobbs as the defendant.

But Desai said her client has nothing to do with receiving or counting ballots — or even can tell the county recorders what to do. She said anyone seeking to change the deadline must also sue the recorders.

Desai also questioned whether the six plaintiffs even have legal standing to sue in the first place because they never claimed any actual injury from the deadline.

“There are no allegations in the complaint, nor did any of the plaintiffs testify at the injunction hearing about the fact that they intend to participate in the 2020 election, that they are planning to use themselves a vote-by-mail ballot,” she said. “And there is no evidence in the record that they have ever previously submitted a ballot that was rejected because they suffered from some sort of mail delay or the fact that their ballot was too late to be counted.”

Desai told the judge that Hobbs acknowledges the hardships that are faced by members of the Navajo Nation including poverty, isolation, problems with traveling on the reservation and unreliable mail service.

“But those harms are not traceable to the secretary or, more importantly, to the receipt deadline,” she said.

And there’s one more thing.

Desai pointed out that the lawsuit specifically seeks the extra time solely for those living on the Navajo Reservation. She told the appellate judges if they were to grant that request it likely would result in confusion.

“What is somebody who is a member of the Pascua Yaqui tribal nation in southern Arizona thought that the order … intended to allow all Native Americans in Arizona to postmark their ballot as opposed to having it returned on the Election Day receipt deadline?” she asked the appellate judges. “Would it apply to one Native American voter versus another?”

The appellate judges gave no indication when they will rule — and whether that will come in time for this year’s election.


Bill proposes extended deadline to file state income taxes


Arizonans could have more time to file their state tax returns.

A proposal from Sen. J.D. Mesnard would extend the deadline to file taxes with the Arizona Department of Revenue by two months, from April 15 to June 15. The Chandler Republican has encouraged Arizonans to delay filing their state tax returns until the Legislature approves a tax code to apply to the 2018 tax year.

SB1481 would give them even more time to do so. The bill would not affect the deadline for filing federal tax returns, which would still be due on April 15.

“It’s just for this year because now we live in the uncertainty of where we’re going to end up in the whole tax conformity discussion,” Mesnard said.

That uncertainty is the result of a spat between Gov. Doug Ducey and legislative Republicans.

The governor wants lawmakers to go along with his plan to pocket higher tax collections, which budget analysts estimate are sure to occur if the state conforms to certain changes in federal tax law. Republicans have balked at what they call a tax increase, and instead are pursuing bills to offset higher taxes.

The standoff culminated on Feb. 1, when Ducey vetoed a proposal by Mesnard to lower tax rates, a maneuver that would decrease tax collections by roughly $150 million.

As long as Ducey and his fellow Republicans are at odds, Mesnard said it’s only fair to give taxpayers more time to ensure the tax code is sorted out before they file.

The Republican governor and his party’s legislators appear no closer to reaching an accord. In fact, Mesnard said he’s moving forward with another proposal to offset higher tax collections by declining to conform six deductions in state law to the federal tax code. Those include deductions on state and local taxes and interest on home mortgages.

Mesnard cautioned that the governor can’t get his way without legislation approved by the House and Senate.

“I realize the governor has made a declaration, but a declaration is not law,” Mesnard said.

Judges question legality of voter-registration deadline extension


Two appellate judges on Monday questioned whether it was legal for a trial judge to give Arizonans an extra 2 1/2 weeks to register to vote.

At a telephonic hearing, Judge Jay Bybee, an appointee of President George W. Bush, said the state has done nothing to specifically make it more difficult for Mi Familia Vota and the Arizona Coalition for Change to sign people up. Instead, he said, it was simply the result of the COVID-19 outbreak and restrictions on travel and gatherings imposed by Gov. Doug Ducey.

Judge William Fletcher, an appointee of President Clinton, expressed similar concerns.

“There is, or was, a statutory deadline (of Oct. 5) which, absent COVID, was perfectly valid,” he said. “And I’m not sure that the presence of COVID makes it invalid.”

Even Judge Marsha Berzon, also a Clinton appointee, who seemed sympathetic, had her own concerns about the order by U.S. District Court Judge Steven Logan scrapping the deadline.

But even if the judges of the 9th Circuit Court of Appeals void Logan’s order and its new Oct. 23 deadline, that doesn’t end the matter.

The judges still need to decide on a plea by Secretary of State Katie Hobbs that even if they overtur the order they should provide a few more days to gather up the registrations that have been occurring since, perhaps through this coming Friday.

And Hobbs wants the appellate court to say that anyone who relied on Logan’s order and registered in the interim still gets to vote this election, even if the judges ultimately conclude that Logan was legally wrong in voiding the statutory Oct. 5 registration deadline.

Monday’s hearing came as Hobbs reversed course and decided to ask the appellate judges to overturn Logan.

Roopali Desai, her attorney, said Hobbs always opposed scrapping the Oct. 5 deadline because it could cause chaos so close to the Nov. 3 election. But Desai said Hobbs did not initially appeal for fear it would cause more confusion than simply leaving the order from Logan extending the deadline in place.

Now, with the case already appealed by others, that’s no longer the case.

The decision by Hobbs to change her position and now seek to void Logan’s ruling did not come entirely in a vacuum.

Hobbs’ initial decision not to appeal put her at odds with 10 of the state’s 15 county recorders from both parties, the people who actually have to process the new registrations. They joined with Gov. Doug Ducey and legislative leaders with their own legal filing asking the appellate judges to reverse Logan’s order.

“Voting in Arizona already has begun,” wrote attorney Brett Johnson, pointing out that early ballots went out last Oct. 7. “County recorders had already shifted resources from registration functions to election activities.”

And Johnson pointed out that recorders were never included in the lawsuit which named only Hobbs as defendant. Yet he said they are the ones who actually are responsible for collecting, verifying and maintaining voter registration applications.

Now, without a chance to defend the Oct. 5 registration deadline, Johnson said, they have to receive, review, verify and follow up on voter-registration applications, something he said “cannot be accomplished this close to the election without creating questions about the authenticity of those registrations.”

But attorney Matthew Brinckerhoff told the appellate judges Monday they should leave Logan’s order in place.

Brinckerhoff, who represents Mi Familia Vota and the Arizona Coalition for Change, said the only reason the issue arose is because the COVID-19 outbreak and restrictions on travel and group activities imposed by Ducey prevented these groups from going out and signing people up to vote.

“An event occurred of extreme and unpredictable circumstance and it had this profound impact on everyone’s lives,” he said.

“This is just one of them,” Brinckerhoff told the court. More to the point, he said this is the kind of situation where a court can step in and make things right, saying it would be a “travesty” to disenfranchise people of the right to vote.

That argument did not convince Bybee.

He pointed out that the problems in signing people up were not due to any specific action aimed at the two groups. Instead, the judge said, these were simply overall restrictions.

More to the point, Bybee said there is no evidence that group members still could not approach people and get them to sign up, Ducey’s orders notwithstanding. So he’s not sure there was any legal justification for Logan to scrap the Oct. 5 deadline.

Johnson, in his pleadings — he did not get to speak at Monday’s hearing — also took his own swat at the challengers for blaming Ducey’s orders for their inability to get people registered.

“This is incorrect,” he wrote. “The executive orders expressly protected the exercise of constitutional rights” which he said includes registering people to vote.

If the appellate judges void Logan’s order, that still leaves the question of what happens to the people who signed up after Oct. 5, the day Logan voided the deadline.

Brinckerhoff said their registrations should remain valid, saying Logan’s order was “widely known.”

“I don’t think it’s an accident there were 15,000 registrations made the day after the injunction was granted,” he told the court.

He said about 15,000 people submitted the forms in the first day after Logan’s order. And Desai said she’s not sure it would be possible to separate out those registrations received after the original Oct. 5 deadline.

There appears to be little opposition to letting those who signed up since Oct. 5 vote in the general election, especially as some already may have cast early ballots.

Less clear is how quickly an order from the appellate court overturning Logan’s ruling — assuming the judges make that decision — would take effect.

Attorney Kory Langhofer, representing the Republican National Committee and the National Republican Senatorial Committee, urged the judges to stop new registrations immediately. He said anyone who had not signed up at whatever hour the order becomes effective would just be out of luck as far as voting this year.

Brinckerhoff, however, said if the judges decide to overturn Logan’s ruling, they should do it “in the least disruptive way possible.”

The judges did not say when they will rule.

But Fletcher also said he’s hoping the court can avoid the whole issue. He told the attorneys they should try to find some sort of a compromise — and quickly — about when new registrations for the Nov. 3 election should be cut off.

State claims Election Day deadline not illegal

Maricopa County elections official Deborah Atkins hangs "vote" signs outside a polling station prior to it's opening, Tuesday, Nov. 6, 2018, in Phoenix. (AP Photo/Matt York)
Maricopa County elections official Deborah Atkins hangs “vote” signs outside a polling station prior to it’s opening, Tuesday, Nov. 6, 2018, in Phoenix. (AP Photo/Matt York)

Secretary of State Katie Hobbs is asking a federal judge to declare there’s nothing unconstitutional about requiring people to get their early ballots to county offices by 7 p.m. on Election Day.

In legal briefs filed Monday on her behalf by Assistant Attorney General Kara Karlson, Hobbs said the two groups that sued, Voto Latino and Priorities USA, have no legal standing to challenge the law. She said they haven’t provided any evidence that a member of their organizations – or, for that matter, anyone at all – has been harmed by the failure to count their vote because the mail wasn’t delivered until after the deadline.

Katie Hobbs
Katie Hobbs

And Hobbs, through her attorney, claimed that Arizona provides more opportunities for voting than many other states. That includes the ability to cast an early ballot without having to provide any excuse at all.

More to the point, she said that people have 27 days to get that early ballot back to county officials. And if they can’t get them in the mail on time, Hobbs said, they can always drop them off at polling places before or on Election Day.

Hobbs also dismissed the idea that somehow voters are confused.

“The fact that all ballot must be received by election officials by Election Day is no secret,” the filings said. “State law requires that every ballot issued include printed instruction notifying voters that ballots must be delivered to the officer in charge of elections by 7 p.m. on Election Day,” information Hobbs said is provided in multiple languages as required by federal law.

The lawsuit filed in November contends the state has “no legitimate interest” in enforcing the deadline, particularly when the state is promoting that people cast their ballot by mail. Attorney Sarah Gonski wants U.S. District Court Judge Dominic Lanza to require counting of ballots postmarked by the 7 p.m. deadline and received within five business days afterwards.

Gonski cited the 2016 presidential preference primary where more than 72,000 Republicans cast a ballot saying they wanted Marco Rubio to be the GOP nominee.

Sarah Gonski
Sarah Gonski

Only thing was, he quit the race days before. Gonski said it was that requirement to have ballots in by that 7 p.m. Election Day deadline that caused so many people to “waste their vote on a ghost candidate.”

Hobbs was unimpressed.

“If voters want to wait until Election Day to see what happens until the campaign ends, they can do so,” she said.

“But Arizona law gives them the option of voting earlier if they choose to do so,” Hobbs continued. “That choice, however, is not a burden on the voters.”

Nor was Hobbs swayed by the fact that mail delivery can be “unpredictable, particularly in rural areas where home delivery is not common and mail is often re-routed through central processing facilities in far-flung cities.”

“Again, voters have choices, and they can weigh factors such as the unpredictability of mail delivery when deciding how and when to cast their ballot,” Hobbs said. “For any mailed ballot, there needs to be a deadline for receipt, and somebody may miss it, just as someone may arrive to the polls too late on Election Day to cast a ballot.”

Hobbs, in her filing on Monday, does not respond to specific complaints by Gonski that the personal drop-off option can be “more time-consuming and burdensome” for rural voters who often live many miles from a drop-off location, and Hispanic and Latino voters who she said have difficulty obtaining transportation or leaving work during the hours when county recorders’ offices are open. That opens the door for Gonski to claim a violation of the Voting Rights Act which generally prohibits states from enacting laws that impair the rights of minorities to vote.

Gonski also told the judge the problem is complicated by a 2016 law that now makes it a crime for volunteers and others to help collect early ballots.

A federal appeals court last month voided that law with the majority concluding that the Republican-controlled Legislature enacted that restriction with the goal of suppressing minority votes.

Attorney General Mark Brnovich is seeking U.S. Supreme Court review — but without Hobbs who said that she agrees with the court’s ruling.