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9th Circuit Court halts voter registration

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 hears ousted lawmaker’s appeal

Former Rep. Don Shooter makes a point during a speech on the floor of the Arizona State House before the vote to expel him from the chamber on Feb. 1, 2018. (Photo by Howard Fischer/Capitol Media Services)

Attorneys for the state and a former House speaker told a federal court Tuesday that the legislature is free to remove members for any reason at all — including political affiliation and race — as long as they can muster a two-thirds vote.

Steve Tully said there was nothing wrong with the procedures used by J.D. Mesnard, who was speaker in 2018, to investigate then-Rep. Don Shooter and eventually have a vote that resulted in his ouster.

Tully, himself a former lawmaker, did not specifically dispute Shooter’s claim that Mesnard ignored decades of precedent which normally allow an accused lawmaker a formal hearing before the Ethics Committee where evidence can be presented and witnesses can be questioned. Nor did he address Shooter allegations that he was being charged with violating a sexual harassment policy that did not yet exist or that Mesnard removed certain information from an investigative report that was given to his fellow lawmakers.

Instead, he told the three-judge panel that lawmakers were free to vote to eject Shooter anyway.

“The right to expel members is granted to the House by the Arizona Constitution,” Tully said, with the only requirement being able to get at least 40 of the 60 members to go along.

That claim drew a skeptical response from Judge Marsha Berzon, a President Clinton appointee. She asked whether if the Democrats controlled most of the seats they could simply decide to remove all Republicans.

“My answer is, yes,” Tully responded. “If they’re at 90 percent (of the House) and they filed a motion to expel a member for being what they thought was disruptive, and they got the votes.”

Berzon said that opens the door to the majority deciding that the minority is being disruptive “because they get up and are making speeches” about why the majority is wrong.

But Tully stuck to his position. And, more to the point in this case, he told the judges that members of the House — including his client — cannot be sued for damages by the expelled member.

It wasn’t just Tully making that argument.

Jeremy Horn, representing the state, said the House can discipline anyone who violates its rules, “whatever the House decides its rules are.”

Berzon questioned that logic.

“If you just let the body expel whoever it wants, with absolutely no oversight by anybody, you could completely undermine democracy?” she asked.

Horn said there is no way for courts to intercede and decide what is proper.

That drew questions from Judge Lawrence VanDyke, a President Trump appointee, about whether lawmakers could decide to remove all black legislators simply because they didn’t want them there.

“It very well may be,” Horn conceded.

What the appellate court ultimately rules will affect more than whether Shooter’s rights were violated and he is entitled to some damages, as reinstatement is not an option. It could set a federal court precedent that gives legislators carte blanche to oust members for whatever reason they want if they can get that two-thirds vote.

The House voted 56-3 in early 2018 to oust Shooter after an investigative report found there was “credible evidence” that he had sexually harassed other lawmakers, lobbyists and others. Since that time, Shooter has been trying to get courts to conclude that his rights were violated and that Mesnard and Kirk Adams, at the time an aide to Gov. Doug Ducey, had defamed him.

Shooter won a small victory last week in Maricopa County Superior Court as Judge Theodore Campagnolo ruled that Shooter is entitled to sue Mesnard over alleged defamatory comments.

The judge acknowledged that elected officials generally have absolute immunity for comments they make during formal sessions.

But Campagnolo said the issues in this case involve claims that Mesnard altered a report about Shooter’s conduct prepared by an outside law firm before it was given to House members and the public. And Shooter also contends that the press release Mesnard issued contained untrue and defamatory statements that went beyond merely stating the facts.

That, Campagnolo said, requires him to reject a bid by Mesnard to simply throw out the case.

The new ruling, however, is not a total victory for Shooter — and not only because all this does is give him a chance to try to make his case.

The judge threw out separate defamation claims made against Adams. Campagnolo said there is nothing in Shooter’s legal briefs containing any specific allegations that Adams had defamed him.

He also said Shooter, as a public figure, had no right to claim invasion of his privacy.

And Campagnolo reaffirmed an earlier decision that the Yuma Republican cannot claim in state courts that he was denied due process in the way he was removed from the House in early 2018. The judge said courts cannot second-guess the procedures used to oust Shooter.

But that claim lives on at the 9th Circuit which led to Tuesday’s hearing.

Philip Byler, Shooter’s attorney, told a three-judge panel of the court that the normal procedure used in the House to discipline or oust a lawmaker involves a hearing before the Ethics Committee. That provides an opportunity for the legislator to not only present evidence but also to question witnesses.

On top of that, Byler said Shooter’s rights were violated because he was charged with violating a “zero tolerance” standard for sexual harassment, a policy that did not exist at the time. And he charged that Mesnard had the independent investigators he hired “omit material and exculpatory testimony and evidence,” including allegations against then-Rep. Michelle Ugenti-Rita, R-Scottsdale, who was one of the women who complained about his conduct.

The appellate judges did not indicate when they will rule.

9th Circuit suspends ruling to allow time to fix unsigned ballots

The James R. Browning United States Courthouse building, a courthouse for the U.S. Court of Appeals for the Ninth Circuit, is shown in San Francisco, Wednesday, Jan. 8, 2020. (AP Photo/Jeff Chiu)

A federal appeals court has put a hold on a judge’s ruling that gave people extra time after Election Day to sign their ballots.

The order Tuesday does not technically overturn last month’s decision by U.S. District Judge Douglas Rayes, an appointee of President Obama, that those who forgot to sign the envelopes before dropping them in the mail should have an extra five days to “cure” the problem. That will have to wait for a full-blown hearing which has not yet been scheduled.

But the three-judge panel said that, by their reckoning, a bid by Attorney General Mark Brnovich to overturn the ruling is likely to be successful. They said the current deadline to fix this kind of mistake is “reasonable” and that the five-day grace period to supply missing signatures “would indeed increase the administrative burdens on the state to some extent.”

If nothing else, the appellate judges, made up of nominees of Presidents Reagan, Clinton and Obama, said they do not like the idea of forcing a change right now.

“As we rapidly approach the election, the public interest is well served by preserving Arizona’s existing election laws, rather than sending the state scrambling to implement and to administer a new procedure for curing unsigned ballots at the eleventh hour,” they wrote.

In granting the stay, the appellate court likely has effectively killed any chance that voters will have this year to cure their ballots after Election Day. That’s because it may not be possible for the judges to have a hearing, issue a ruling and then have whichever side loses take it to the U.S. Supreme Court before Election Day.

It does, however, preserve the ability of the challengers to make their case for upholding Rayes’ decision ahead of the next election.

Tuesday’s order is a setback for the Arizona Democratic Party, the Democratic National Committee and the Democratic Senatorial Campaign Committee who had asked Rayes to block election officials from rejecting unsigned ballots.

There’s a political component to the fight.

Alexis Danneman, who represents challengers, said it was “inevitable” that Democrats — or those who would vote for Democrats — would not have their votes counted unless they were given an opportunity to cure their unsigned ballot envelopes.

On the other side of the fight, the Republican National Committee, the Arizona Republican Party and the Donald J. Trump for President Committee intervened to preserve the law.

In providing the extra five days, Rayes pointed out that Arizona lawmakers have provided that same grace period to those who are notified by election officials that the signatures on the envelopes do not match what is on file at county offices. The judge said he saw no difference or additional burden created by extending the same consideration to those who forgot to sign the envelope at all.

The appellate judges, however, said that misses a key point.

In the case of a mismatched signature, they said that could be the result of a subjective decision by an election worker.

“It is rational, then, that the state might voluntarily assume some additional administrative costs to guard against the risk of losing such votes at potentially no fault of the voters,” they said.

By contrast, the judges said, the failure of a voter to sign the ballot envelope is totally that person’s fault.

“The state may still reasonably decline to assume such burdens simply to give voters who completely failed to sign their ballots additional time after Election Day to come back and fix the problem,” they wrote. And they said that requiring people to sign their ballot envelopes imposes only a “minimal” burden.

Brnovich had help in his bid to stay the law, beyond the Republican organizations. The attorneys general of 20 states — all Republicans like Brnovich — submitted their own legal brief asking the appellate judges to leave the Arizona law in place and accusing Rayes of “overreach.”

Court to decide whether lead ammo to be banned in Kaibab

A California condor takes a break at the Grand Canyon. (National Park Service Photo)

Environmental groups will get a new chance to force the U.S. Forest Service to ban hunters from using lead ammunition in the Kaibab National Forest in a bid to protect condors.

The 9th Circuit Court of Appeals said Thursday U.S. District Court Judge Stephen McNamee was wrong in deciding that he had no right to tell the Forest Service that it had to outlaw that type of ammo. Judge Marsha Berzon, writing for the unanimous three-judge panel, said the environmental groups are entitled to make their case that the failure of the Forest Service to act has endangered the condors.

That sends the case back to McNamee.

Thursday’s ruling is not just a setback for the Forest Service. It also is a defeat for the National Rifle Association, the Safari Club and the National Shooting Sports Foundation, all of which intervened in an effort to kill the litigation.

A call to Phoenix attorney Norman James who argued for the National Shooting Sports Foundation was not immediately returned.

The lawsuit, filed in 2012, is based on the fact that condors and other birds essentially are scavengers.

“Some hunters in the Kaibab use lead ammunition, and some of them leave behind the remains of their kill, either because they prefer not to ‘pack out’ the remains or because the hunted animal runs away after it is shot and then dies elsewhere,” Berzon, a President Clinton appointee, wrote. Meanwhile, other animals feed on those remains and ingest fragments of spent lead ammunition.

“Lead ingestion, even in small amounts, can cause significant adverse effects on animals’ health, including death,” she wrote, noting that the federal government and even the state of Arizona has banned the use of lead bullets for waterfowl hunting.

The lawsuit, filed by the Center for Biological Diversity, the Sierra Club and the Grand Canyon Wildlands Council, seeks an order requiring the Forest Service – which had admitted it has the power to ban lead ammo on federal lands – to actually do so.

McNamee, in throwing out the case, concluded that he did not actually have the power to issue such an order, saying any ruling would be “nothing more than a recommendation.” Berzon, however, said that’s not the case.

She pointed out that the claim is brought under the Resource Conservation and Recovery Act. And while that law generally deals with things like dumping of wastes, there is no reason to believe that it also would not cover the question of lead left behind by hunters.

Allison LaPlante, an attorney with Earthrise Law Center in Oregon who is representing the environmental groups, said her task now is to make the connection.

“We need to show that the presence of spent lead ammunition on the Kaibab National Forest is presenting an imminent and substantial endangerment to wildlife, including California condors,” she told Capitol Media Services. LaPlante said the evidence backs that claim.

“We know that condors are being poisoned by lead ammunition,” she said. “This is the single largest threat to their survival in this area.”

According to LaPlante, the number of condors on the plateau is in the 70s.

More alarming, she said, is a 2018 report which shows that 77 percent of condors tested showed evidence of lead exposure greater than 15 micrograms per deciliter, with about a third of the birds showing levels greater than 65.

“It’s just telling because they begin experiencing harms from lead poisoning anywhere greater than 10 micrograms per deciliter,” LaPlante said. “So it doesn’t take very much.”

LaPlante said the burden now is to make that case to McNamee.

“We know what the problem is,” she said. “Our lawsuit calls on the Forest Service to find a solution.”

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.

Public’s right to know about executions limited to official record

Arizonans have no legal right to know where the state obtains drugs to execute inmates, the 9th Circuit Court of Appeals Tuesday.

But the judges said people do have the right, through official witnesses, to hear what is happening in the death chamber to better monitor how the state puts people to death.

The judges acknowledged claims by attorneys for both prisoners on death row and the First Amendment Coalition that knowing who made the drugs and things like the expiration dates would help the public better monitor whether the state is acting constitutionally in how it puts people to death. But Judge Paul Watford, a President Obama appointee writing the majority ruling, said this information is not part of any official record of the execution proceeding, material to which the public is entitled.

“It is simply information in the government’s possession that would enhance understanding of executions,” he wrote. That, however, does not grant a public right of access.

Dale Baich, the federal public defender for Arizona, said the problem is that state officials have been less than transparent − and less than truthful − in obtaining execution drugs in the past.

For example, he said the Department of Corrections claimed that it had obtained lethal drugs legally in 2010 and 2011.

“We now know as a result of litigation and other disclosures that the state wasn’t being forthright,” said Baich whose office handles most death penalty appeals in the state.

And in 2015 the state tried to import sodium thiopental from India despite the fact that there was a federal injunction in place prohibiting that action. That resulted in the U.S. Food and Drug Administration seizing a $27,000 shipment ordered by the state at Sky Harbor Airport.

It isn’t just Baich who has concluded that the state has been less than honest.

Appellate Judge Marsha Berzon, a President Clinton appointee writing separately, cited the botched 2014 execution of Joseph Wood.

She said state officials said that “nearly every detail” of its execution protocol had been made public. Yet the state administered 13 more doses of lethal drugs than the protocol authorized. And it took Wood two hours to die.

“These deviations in protocol are not isolated,” Berzon wrote. “In other executions, Arizona has obtained its legal drugs illegally or administered them in unauthorized dosages.”

For the moment, the question of execution protocols, including information on the drugs used and audio access, remains an academic question.

Arizona halted executions in 2014 after the botched Wood execution.

The moratorium, including one issued by a federal judge, has since been lifted. But any drugs the state had on hand have since expired.

Meanwhile the state agreed as part of the lawsuit not to use midazolam, one of the drugs used to put Wood to death, as part of any future execution.

More to the point, manufacturers of various other medications that legally can be used in executions have refused to sell them to the state to be used for lethal injections. That leaves 14 people on death row who have exhausted all their appeals.

In July, Attorney General Mark Brnovich sent a letter to Gov. Doug Ducey, offering his help in the governor ordering a new supply of lethal drugs.

Ducey told Capitol Media Services at the time he was studying the letter and remains a believer in capital punishment. But, to date, Ducey has yet to respond and the state still has no drugs that can be used for an execution.

“This is a very serious and complex issue,” gubernatorial press aide Patrick Ptak said Tuesday, saying he has nothing new to report.

Brnovich, for his part, is not letting up on the pressure.

On Tuesday he noted that the 9th Circuit ruling comes on the 35th anniversary of the murder of Vicki Lynne Hoskinson, a 7-year-old Tucson girl who disappeared while riding her pink bicycle at De Anza Park.

Police eventually arrested Frank Jarvis Atwood who had been released on parole in California in 1984 after serving his second prison term for sex acts with children. He initially was charged with kidnapping, with murder charges added after Vicki’s skull and some bones were found in the desert northwest of Tucson the following year.

“Now is the time to resume executions in Arizona,” Brnovich said Tuesday.

“Justice must be done for the victims of these heinous crimes,” he continued. “Their families have waited long enough.”

It isn’t just Brnovich pressuring Ducey.

In a letter to the governor obtained by Capitol Media Services, George and Debbie Carlson, Vicki’s parents, asked him to order pentobarbital to resume executions of federal inmates. They noted that Brnovich has said the federal government apparently is able to get the drug, making him believe Ducey could too if he pursues the matter.

“We have come to a point of questioning where the rights of the victims come into the criminal justice system,” the couple wrote to the governor urging him to order the drug. “We are proof it does not!

While refusing to require the state to provide more information on what drugs it eventually hopes to use for executions, the judges reached a different conclusion on the legal question of whether the right to witness executions also includes the right to hear the sounds the inmate is making as he or she is being put to death.

“The public has a First Amendment right to view executions in their entirety,” Watford wrote. And he said the current practice of the Department of Corrections to put inmates to death behind sound-proof glass does not meet that requirement.

That issue of sound has become an issue since the botched 2014 execution of Wood.

Witnesses said while there was evidence of choking and coughing − and that it took 13 more doses of lethal drugs than the Department of Corrections protocols authorized − they could not hear anything other than the few moments when the microphone in the death chamber was turned on so the execution team could provide updates.

“Lifting Arizona’s restriction on the witnesses’ ability to hear would ensure more comprehensive coverage of executions in the state,” Watford wrote.

The judge said that conclusion was really setting no new precedent.

“Executions have historically been open to the press and the general public,” he said, going back to the days of public hangings. “The crowds that gathered to watch those executions could, no doubt, hear the sounds of the entire execution process, even if not with perfect clarity.”

SCOTUS accepts Arizona ballot harvest case

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.

State argues unsigned ballots invalid

An attorney for the state asked a federal appeals court July 7 to let Arizona refuse to count early ballots that voters forgot to sign initially and did not fix by election night.

Assistant Attorney General Drew Ensign did not dispute that current law gives up to five days after the election to those whose signatures do not match to “cure” the problem.

That distinction is what caused U.S. District Court Judge Douglas Rayes to last year declare that it is illegal to deny the same ability to those who did not sign the ballot at all.

But Ensign told a three-judge panel of the 9th Circuit Court of Appeals that Arizona lawmakers are entitled to have stricter rules — and an earlier deadline — for those who neglect to sign at all.

In striking down the deadline last year, Rayes did agree to stay his original order. That kept the current deadlines in place for the 2020 election.

Now the question is what rules will govern the 2022 vote, the one at which all statewide offices are up for grabs along with what is expected to be a close race for the U.S. Senate.

And that is why the Arizona Democratic Party is trying to keep the extended deadline in place — and why the state, joined by the state and national Republican parties, wants to return to the election night deadline.

There are not a lot of ballots at issue. In 2018, for example, just 2,435 ballots statewide were rejected because they arrived in unsigned envelopes and the voters never made the trip to county election offices by 7 p.m. on Election Day to “cure” the problem.

Attorney Elisabeth Frost, representing the Democrats, told the judges that giving the extra time would impose only a minimal burden on election officials. And she pointed out that both Secretary of State Katie Hobbs and recorders from most counties said they saw no problem with providing voters the extra five days.

The outlier was Pima County where Chris Roads, who was the deputy recorder, provided statements that it would create a significant administrative burden. He said it would require staffers to locate the unsigned ballot, something that can be handled only with workers of two different parties present.

But Rayes, in his ruling last year, brushed that aside.

He noted that Pima County rejected just 75 ballots in 2018 due to missing signatures. The judge said that doesn’t qualify as a significant enough burden to justify the election night deadline and deny someone the “fundamental right” to vote and have it counted.

Frost also argued that an unsigned ballot is the functional equivalent of someone showing up at a polling place on Election Day without the proper identification. In that case, she said, the voter is given five days to provide the necessary ID to ensure the completed ballot is counted.

But Judge Susan Graber, a judicial nominee of President Clinton, said she’s not buying that comparison.

“They’re not fully completed,” the judge said of the unsigned ballots.

“That’s the problem,” Graber continued. “If they were fully completed, we wouldn’t be having this conversation.”

Ensign, for his part, urged the judges not to buy the argument that those who forget to sign their ballots should be given the same opportunity to fix the problem as those whose signatures did not match what county officials have on file.

“With signature mismatches, it typically is not the fault of the voter whatsoever, which contrasts completely with the missing signature which is virtually always the complete fault of the voter,” he said. Beyond that, Ensign said that signature matching — the process used by election officials to compare signatures on early ballot envelopes with what is on file — is “inherently subjective and has rates of error for which there are reasons to have cure periods.”

“By contrast, there is absolutely no evidence in the record whatsoever that Arizona has ever wrongfully determined that a ballot was unsigned when it was, in fact, signed,” he said.

And Ensign said a mismatched signature can be dealt with by a phone call with the voter to verify that she or he was the one who mailed in the ballot. By contrast, a missing signature requires the voter to go to election offices where workers, one from each party, accompany the ballot and watch the missing signature be put into place.

That, he said, can slow up the process of counties finishing their counting on time.

Daniel Shapiro, representing the Republicans, had other legal theories about why the deadline of 7 p.m. on Election Day is legally valid for unsigned ballots and why those who signatures do not match should get that extra five days.

“Mismatched ballots have long been seen in Arizona to be complete but invalid, making it OK to cure them after the election deadline,” he told the court.

“But, really, signing an unsigned ballot after Election Day is, in effect, voting after Election Day,” Shapiro continued. “And there is no right to do that.”

He also called the election night deadline “minimally burdensome.” He said that fact alone should have resulted in Rayes tossing the original lawsuit and ruling against the Democrats.

Frost, for her part, disputed that the election night deadline imposes only a minimal burden on those who are otherwise legally entitled to vote. But even if the burden is minimal, she argued that Rayes was correct in ruling that is not legally justified.

This case is different than many of the other challenges that have been made to Arizona election laws.

In those cases, the claim has been that the law in question results in disparate treatment based on a what the law considers a “protected class,” like gender, race or ethnicity. There has been no evidence presented here of such inequity.

But Frost said that still does not entitle the state to come up with differing rules for “curing” ballots.

The judges gave no indication when they will rule.

U.S. Supreme Court takes on Arizona ballot harvest law

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) — 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.”

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.

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.

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