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.
Saying state and county prosecutors may balk, a House panel voted Tuesday to let anyone file suit to claim that public dollars are being used to influence elections.
The 5-4 vote by the House Elections Committee on HB 2026 came after claims by Rep. John Kavanagh, R-Fountain Hills, that individual taxpayers need the right to step in to enforce the law.
He acknowledged that current law permits either the attorney general or county attorney to sue local governments or school districts that use public resources to urge people to vote for or against individuals or ballot measures. But Kavanagh said those officials, being political animals, worry about getting re-election.
“They don’t stand up to their responsibilities and they take the cowardly way out by, for whatever reason, saying, ‘I don’t think this deserves being looked into’ (or) ‘lacks merit,’ ” he said.
Rep. John Fillmore, R-Apache Junction, agreed, saying that taxpayers should not have to rely on a county attorney or attorney general to enforce the laws.
“There are perhaps elected officials which may run for cover and not want to get into it for various political reasons,” he said.
“What this does is it allows the average person, whether Democrat or Republican or independent, that feels there’s been some malfeasance, to raise the issue and follow it up in court,” Fillmore said. “It’s a very reasonable thing.”
Tom Savage of the League of Arizona Cities and Towns, urged defeat of the measure, saying the existing laws are adequate. And he said this change could lead to unnecessary lawsuits.
That’s also the assessment of Rivko Knox who lobbies for the League of Women Voters. She told lawmakers that “frivolous lawsuits” could force school districts to use their resources to hire attorneys rather than spend the time and money “to be used to educate future Arizona voters.”
Kavanagh conceded under questioning that he knows of no specific incident where either a county attorney or attorney general actually refused to pursue a complaint.
But he said that’s irrelevant.
“Even if there weren’t any I don’t see why we would object to having the public have this remedy, because it could happen tomorrow,” Kavanagh said.
The measure now goes to the House Government Committee.
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.
Sen. Michelle Ugenti-Rita. (Photo by Katie Campbell/Arizona Capitol Times)
Ignoring the testimony of county election officials, Republican lawmakers voted to bar Arizona voters who receive their ballot by mail from turning them in by hand.
On party lines, the four GOP senators on the chamber’s Judiciary Committee advanced SB 1046, which would restrict how voters who sign up for the Permanent Early Voting List, known as PEVL, can cast a ballot. Current law allows them to return those ballots by mail, or hand-deliver them to election facilities at any time leading up to or on election day.
Some voters like to wait until the last minute – 228,000 mail-in ballots were dropped off at polling sites on the day of the 2018 general election, according to the Secretary of State’s Office.
Sen. Michelle Ugenti-Rita said eliminating those so-called “late-early” ballots will help speed up the announcement of election results, and would temper frustrations from the 2018 election, when several races were too close to call for more than a week after election day.
County officials testified that the Scottsdale Republican’s logic is flawed.
Whether they’re mailed in or not, people like holding onto their ballots as long as possible, said Jennifer Marson, executive director of the Arizona Association of Counties, so ballots mailed at the last possible second would still pile up on election day, too.
“The counties believe voters should have the opportunity to turn in that ballot regardless of when they received that ballot,” Marson said.
If more voters use the alternative provided in Ugenti-Rita’s proposal by voting in person on election day, in the event they forget to mail their ballots back on time, voters could experience longer lines at the polls and more costly elections, said Rivko Knox of the Arizona League of Women Voters.
That’s really all beside the point, Knox said, because the bill is trying to solve a problem that doesn’t exist. While Republicans have complained that ballots took too long to count, recorders took roughly the same amount of time to count votes in 2014, 2012, and other elections, Knox said.
“The difference was that several elections were very close,” she said, meaning competitive races highlighted the vote-county process. Many of those close races resulted in victories for Democrats to key statewide offices, even after initial vote tallies on election night favored some Republican candidates.
Yavapai County Recorder Leslie Hoffman said there is one scenario in which Ugenti-Rita’s bill would speed up the vote-counting process.
“It might save time by reducing turnout,” Hoffman said. “We don’t want that.”
That’s when Sen. Eddie Farnsworth, a Gilbert Republican and chair of the Judiciary Committee, cut off Hoffman’s testimony, calling it “unfounded speculation.”
Ugenti-Rita later dismissed the criticisms of the county election officials as beyond their purview.
“This is a policy discussion,” and it’s well within the Legislature’s right to set the rules for how recorders conduct elections, Ugenti-Rita said. “For them to say it’s not a good piece of legislation and it’s disenfranchising voters, that’s really beyond their scope.”
The committee’s three Democrats criticized the bill for ignoring the expert advice of officials who conduct the elections. In addition to failing to produce more timely election results, Sen. Martin Quezada cited testimony that the policy change would sow confusion among voters.
“We’re taking away an option that’s used a lot because we simply don’t like it,” the Phoenix Democrat said. “We haven’t even identified that we’re solving the problems the sponsor is trying to solve.”
Farnsworth said that Arizona voters will still have ample opportunity to vote.
“We already give both options,” Farnsworth said, referring to the state’s dual system of mail-in ballots and day-of voting. “We’re just suggesting, choose one or the other.”
Republicans also approved another Ugenti-Rita to bill that requires voters to produce ID to cast ballots at in-person early voting sites. Current law only requires ID to vote on the day of the election – early ballots, whether cast in person or by mail, have historically used a voter’s signature as their ID.
Sen. Andrea Dalessandro, D-Tucson, said she feared SB 1072 would disenfranchise older and low-income voters who might not have access to a traditional driver’s license for identification.
Democrats and Republicans did find one bill to agree on.
SB 1072, also sponsored by Ugenti-Rita, would create uniform standard for all 15 counties in Arizona when allowing voters to “cure” their ballot and ensure it’s counted.
As approved, the bill only provides a curing process for early ballots with missing or “illegible” signatures during a period of five business days after an election. Ugenti-Rita expressed willingness to amend it and provide opportunities to cure a vote if there’s an issue with the signature beyond legibility.
Critics warn that a plan to alter the membership of a commission responsible for drawing Arizona’s congressional and legislative district maps is designed to fail.
Senate President Steve Yarbrough (R-Chandler) (Photo by Katie Campbell/Arizona Capitol Times)
Senate President Steve Yarbrough conceded that by increasing the number of members on the Independent Redistricting Commission from five to eight, it’s likely that the commission would face gridlock.
“That is indeed going to create a probable 4-4 (vote) by my own estimation, but that is by design,” the Chandler Republican told the Senate Government Committee, which approved the resolution on a 4-3 partisan vote Wednesday.
Requiring a supermajority to approve maps during redistricting, a highly-contentious process that creates district maps that will be used for the next decade, will require commissioners to find true bipartisan consensus, Yarbrough said.
“I want the most bipartisan and fair process that we can design,” he said.
Joel Edman, executive director of the Arizona Advocacy Network, said Yarbrough’s resolution makes the IRC more partisan, not less.
“If that’s his goal, he’s designed the exact wrong system to accomplish it,” Edman told the Arizona Capitol Times.
Currently, commissioners are chosen from a pool of 25 candidates vetted by the Commission on Appellate Court Appointments. Republican and Democratic legislative leaders get to choose two commissioners each from the pool.
Those four commissioners must then select a fifth candidate, typically an independent or anyone who’s neither a Republican or Democrat, to serve as chair of the IRC.
SCR 1034, co-sponsored by nearly all Republican legislative leaders, eliminates the Commission on Appellate Court’s role in vetting candidates, and would let legislative leaders directly select three Republicans and three Democrats. The final two independent commissioners would also be chosen by legislative leaders, one each by the Republican and Democratic caucuses.
The current system is too easily “gamed” by one party, as Republicans and Democrats seek to install an IRC chair that will vote in their favor, Yarbrough said.
“That person effectively becomes the redistricting czar,” he said. “They control the process.”
As Yarbrough acknowledged, Democrats and Republicans would still choose independents who would be the most likely to serve their own interests. But that will force the IRC to reach amicable solutions, not settle for a tie, he said.
Edman said that’s not likely.
“That sets it up for gridlock,” Edman said. “To me, it’s set up to make the system fail, and to go back to politicians drawing their own lines.”
That’s exactly why voters approved Proposition 106 in 2000. It took redistricting responsibilities away from the Legislature, unlike most states where state lawmakers are responsible for drawing maps that will determine the composition of districts they’ll campaign in for years. The Independent Redistricting Commission was designed to keep partisan legislators out of the redistricting process, said RivkoKnox of the Arizona League of Women Voters, and Yarbrough’s resolution would let them right back in.
The resolution would give the Legislature a chance to draw district maps to compete with the IRC’s, which the Legislature could refer to the voters. That vote would need to occur in between the 2020 and the 2022 General Elections.
If approved, those maps would render the IRC moot. The Legislature’s alternate redistricting plan would trump anything prepared by the IRC, so long as voters approve it.
Maps drawn by state legislators are often challenged in court. In recent weeks, the Pennsylvania Supreme Court released a ruling that the state’s Republican-drawn congressional districts were drawn to gerrymander districts in the GOP’s favor.
Republicans on the Government Committee touted the addition of a second independent voter on the commission, which Sen. John Kavanagh, R-Fountain Hills, said would better represent the proportion of the state’s registered voters who don’t side with a political party.
The resolution would also call for legislative districts to be drawn so that the population of the largest district doesn’t exceed the smallest district by more than 2 percent. Current districts vary much more wildly, which Kavanagh said creates districts that are overwhelmingly dominated by one of the top two political parties.
For that reason alone, Kavanagh said he was “appalled” that the League of Women Voters and Arizona Advocacy Network opposed the resolution.
Edman said that efforts to make district populations more even are a great idea, so long as the maps comply with the Voting Rights Act.
But there’s also many more reasons to oppose the resolution, he said.
Before any of Yarbrough’s proposals take effect, Arizona voters would have to approve Yarbrough’s proposed changes to the IRC — if the resolution advances out of the Senate and House, it’ll be put on the ballot in November.
Edman suspects it’s a question that isn’t worth asking — voters are likely to reject changes that would make redistricting more partisan again.
“The reality is that these things are hotly contested,” he said. “This is the most partisan issue that’s possible… so of course both sides are going to work as hard as they can to try and game the system, and that’s why it’s important that we have rules that are hard to game.”
A federal appeals court is going to give Democrats a new chance to argue that an Arizona law banning “ballot harvesting” is illegal.
In a brief order, the majority of the judges on the 9th Circuit Court of Appeals said they want to review and reconsider a 2-1 ruling by one of their panels last year that upheld the 2016 law that bars Arizonans from collecting and delivering the ballots of others.
In that ruling, the majority brushed aside complaints from the state and national Democratic parties that the Republican-controlled Legislature had no evidence of fraud from the practice. Nor were they persuaded by arguments that the restriction has a harsher effect on the voting rights of minorities than Arizona residents in general.
Judge Sandra Ikuta, writing for the majority in that decision, 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.
The order does not mean that a full panel of 11 judges intends to override what Ikuta wrote for herself and Judge Carlos Bea. But it is relatively rare for the full court to grant such review.
No date has been set for a hearing.
In a prepared statement, a spokeswoman for Attorney General Mark Brnovich said her boss is unconcerned with the court reviewing the earlier ruling.
“The state of Arizona has successfully defended this important common-sense law for nearly three years and will continue to defend the rule of law,” said Katie Conner.
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 7 p.m. on 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.
But Republicans, in approving HB 2023 to ban the practice in 2016, argued that presents too many opportunities for mischief.
The law does have exceptions for family members, those living in the same household, and caregivers for those in nursing homes and similar facilities.
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, 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 challengers to the law already have one important voice on their side: Chief Judge Sidney Thomas.
In his dissent on the original ruling, Thomas said his colleagues ignored 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.”
And Thomas derided the evidence cited by some lawmakers in supporting the ban.
He specifically mentioned claims by Don Shooter, then a Republican state senator from Yuma, that ballot collectors steam open sealed 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.
Thomas was no more impressed by a soundless video produced by A.J. LaFaro, who was chairman of the Maricopa County Republican Party. The judge said it showed nothing illegal but was accompanied by a voice-over from LaFaro claiming the man was acting to stuff the ballot box.
The new legal development in the Arizona comes as the practice of ballot harvesting has drawn national attention with the results of a North Carolina congressional race being delayed by an investigation into whether Republicans there illegally collected the ballots of minority voters and then purposely failed to turn them in.
But attorney Spencer Scharff who represents Democratic interests in a separate challenge to the ballot harvesting law, said whatever mischief that took place in North Carolina is irrelevant and should not be used as an excuse to allow Arizona lawmakers to ban the practice here.
“There are numerous laws currently on the books, both state and federal, that properly regulate criminal behavior as it relates to elections,” he said. And Scharff said that’s not just true in North Carolina.
“Before they passed HB 2023 it was already a crime to tamper with someone’s ballot, to steal someone’s ballot,” he said. “It was already a crime to collect someone’s ballot and then fail to deliver it, effectively stealing that ballot.”
What that leaves, Scharff said, are simply the additional hurdles that a ban on ballot harvesting creates for voters.
Scharff is representing Democratic activist Rivko Knox in a separate challenge to the ballot harvesting law. She argues it interferes with her First Amendment rights and contends that the Arizona law illegally infringes on the exclusive right of the federal government to regulate who can deliver mail.
That argument fared no better before the same three-judge panel, with even Thomas rejecting those arguments. Scharff is filing his own separate bid to have the full 9th Circuit review the ruling.
Arizona Republican legislators have a habit of pushing ideas that make their own lives easier, but harder for voters to have their voices heard.
Critics say the GOP-led efforts are a consolidation of legislative authority, designed to fend off an increasingly independent and incensed electorate in a state that’s becoming slightly more competitive every two years.
Some examples include legislation like SB1023, which would allow legislative candidates to identify fewer of those individuals who make financial contributions to their campaigns, leaving voters in the dark about who’s influencing elections.
And Republicans are also leading an effort to quash a movement in Tempe to reveal the sources of “dark money” in local elections. It’s a GOP bid to keep campaign dollars spent by groups that don’t disclose the source of their money a secret.
And there are more.
Arizona is no stranger to bills that are criticized as a power struggle between lawmakers and voters, but Zachary Smith, a regents professor of politics and international affairs at Northern Arizona University, said this year’s wave of legislation is unprecedented.
“In 30 years of watching the Arizona Legislature, I’ve never seen such blatant attempts to empower the Legislature and disempower the voters, and that’s taking all of these things into consideration,” Smith said.
Republican lawmakers say there’s no concerted effort to undermine voters, and make the case for bills on an individual basis as good for Arizona and good for their constituents. But on some issues, their policy positions contradict popular public opinion.
Rivko Knox, a volunteer lobbyist with the League of Women Voters, recalled one legislative hearing this year on a bill with dozens of speakers signed in to oppose, and minimal support, but still, a lawmaker claimed the measure was widely backed.
The “request to speak” system is by no means a definitive arbiter of public opinion. Still, in the face of overwhelming opposition at the hearing, “the legislator said, ‘That’s not what I hear in my district,’” Knox said.
If that’s the case, she said, “to what extent you’re really representing your district, I don’t know.”
Power retention
In some ways, Knox sees Republican efforts to consolidate power in the Legislature as instinctual, albeit a tactic that shies away from transparency and shows a disrespect for the public, she said.
“To some extent it’s almost a natural reaction, in the sense that one body wants to retain power,” she said.
Joel Edman
Those bodies, the Republican-dominated Arizona Senate and House of Representatives, are frustrating lobbyists like Knox and Joel Edman, executive director of the Arizona Advocacy Network.
“Instead of having huge debates on how we can get more money into classrooms, and how we can take care of the families that don’t have reliable access to health care, that we’re trying to figure out, can we raise the salaries of legislators, can we make it so we don’t have to run for re-election so often, can we make it so we can hide some of our campaign contributions?” Edman said. “It’s a really sort of twisted view of the priorities.”
There is in fact an effort to dramatically increase legislative salaries, though such a pay hike would require a vote of the people, and Arizonans haven’t been keen on rewarding lawmakers with a raise for years.
Arizonans may also be asked whether they want senators and representatives to serve four-year terms, rather than two years. The resolution, sponsored by Rep. Drew John, R-Safford, would halve the number of elections in which legislators must campaign, a boon for institutional knowledge, some argue. Even Edman and Knox see the benefits of such a proposal.
And yet, HCR2006 finds a way to make legislators’ lives even more easy because legislative elections would only be held every four years during midterm elections, when voter turnout is at its lowest and campaigns are dominated by the most passionate, and arguably far-right and -left, of each party, Edman said.
“That means that some segment of voters who show up just for presidential years aren’t going to have their voices heard at all – they’re basically irrelevant as far as the state Capitol is concerned. And so that’s a whole segment of voters that are taken out of the process,” he said.
Should they vote every year? Sure, Edman said. But as long as they don’t, fewer elections should at least be held at a time when more voters are likely to cast ballots, he said.
Initiatives
Edman and Knox speculate that avoiding voters might be the underlying goal. For example, it has become routine for Republicans to sponsor bills that chip away at the initiative process, by which voters can bypass the Legislature and pass laws on their own, or even block laws the Legislature approved.
Proposition 206, a citizens initiative to raise the minimum wage that voters approved in 2016, seems to have accelerated those efforts, Edman said.
“Certainly it brought on all these attacks on the initiative process, but I think folks down here, and I think in particular a couple of powerful interests groups like the (Arizona Chamber of Commerce and Industry) who were used to getting their way saw they can’t always get their way with the electorate,” he said. “So let’s see if they can again find a way to make the electorate less important in how the state runs things.”
That feeling is also reflected in efforts like HCR2022. Sponsored by Rep. Travis Grantham, R-Gilbert, the resolution would ask voters to give up their right to elect partisan candidates in primary elections for the U.S. Senate. Instead, legislators from the Republican and Democratic parties would select two nominees each whose names would appear on the General Election ballot.
When the resolution was approved by a House committee on a 6-3 party-line vote, Republican representatives said the measure will better serve the state by ensuring U.S. senators are acting in the best interest of the state.
“That to me is such a blatant way of saying, ‘We ought to control what’s going on. We want senators that are dependent on us,’ as if the legislators are the people of the state, and they’re not,” Knox said.
Some don’t pan out
Rep. Bob Thorpe (R-Flagstaff)
The sponsors of resolutions like HCR 2022 are often criticized for not having their finger on the pulse of the electorate. Rep. Bob Thorpe, the Flagstaff Republican who has sponsored several bills to draw the fire of progressive and nonpartisan interest groups alike, said he knows exactly what he’s doing – it’s what his voters want.
Not all constituents may like it, but Thorpe said he’s doing right by his Legislative District 6.
Sometimes that means pitching bills that don’t pan out. Thorpe said he sponsored HCR2014, the resolution to block independents from voting in partisan primaries, because a voter in his district asked him to. But he backed off the idea after consulting with state Republican leaders, who weren’t in favor of the idea.
Thorpe said most bills come from ideas from constituents. There’s nothing nefarious going on, as if Republican lawmakers are plotting with one another about ways to undermine the will of the voters.
“We are all free agents down here, and it’s very rare that as we’re crafting bill ideas that we’re having conversations with members. … I think what you might be suggesting and other people might be suggesting is there’s a collaborative effort to push the agenda in a certain direction,” Thorpe said. “We don’t even have right now a majority plan in place, where the majority has decided we’re going to be pushing A, B and C.”
For Thorpe, the best way to represent the voters of his district is to push for what he philosophically believes is in the best interest of the state of Arizona.
Take the minimum wage issue as an example.
Thorpe argued that such a high minimum wage – Arizona’s now stands at $10.50 per hour, but will increase to $12 by 2020 – is bad for businesses and ultimately hurts the residents it’s trying to help. So he supports efforts to freeze the minimum wage at its current rate and undo paid-leave protections for employees that were approved by voters less than 18 months ago.
Initiatives like Prop. 206 that increased the minimum wage get in the way of Thorpe’s view of a representative form of government.
“People elect us to come down here and the Legislature to write laws,” he said. “So when you have a bill, whether it’s well intentioned or not, a referendum, it basically steps on our toes as the Legislature.”
Stepping on toes or not, Prop. 206 passed with little opposition. Roughly 58 percent of voters approved the minimum wage hike across the state, and in Thorpe’s LD6, the proposition passed with more than 57 percent of the vote, according to an analysis prepared for Arizona Wins, a progressive advocacy group.
So how does Thorpe reconcile supporting a measure to undo something that voters in his district supported?
“I look at my constituents. When I go before the people in northern Arizona, I’m thanked for the job I’m doing,” he said.
And if he keeps getting elected, that must mean there’s at least some voters in LD6 who approve of what he’s doing, like undermining the minimum wage initiative.
“Any election, (voters) have the opportunity to get rid of me and to elect someone else. I’m coming up for re-election now, and they have that opportunity to do so,” Thorpe said. “So if I’m not doing what they want me to do, they’ll replace me.”
Ignoring the popular vote
Smith, the NAU professor, said there are many factors that create an environment where a lawmaker like Thorpe can ignore the popular vote in his district. Lawmakers are listening to some, but not all, of their constituents, he said.
As far as having their finger on the pulse of the electorate, it’s a valid criticism, Smith said, “but see, they don’t have to, because they only have to have 51 percent of the people that vote in the Republican primary in their district, and most of those guys know it.”
Smith said that Republicans in charge of the state right now are “enriched and empowered by forces that weren’t in play in the past” – particularly anonymous campaign expenditures like the ones Tempe wants to shine a light on, but Republican legislators want to keep in the, well, dark.
The financial influence of anonymous political spending stretches from the highest office in the state – Gov. Doug Ducey was the beneficiary of $8.2 million in dark money during the 2014 election — to some legislative races.
On the bright side, Smith noted that many of these legislative efforts are dead or dying.
Sen. John Kavanagh, R-Fountain Hills, is killing SB1023, which would shield some campaign contributor s from exposure, in the face of opposition, including some from his own party. A Thorpe bill to exempt communications on personal devices from the public record never passed a committee hearing.
But bills like the dark money ban pre-emption and an effort to overhaul Arizona’s Independent Redistricting Commission are alive and will likely be approved along party-line votes. Progressives like Edman are hopeful that the changing demographics of the state will alter that reality.
Some see a not-too-distant future where that might be the case.
Sen. Robert Meza (D-Phoenix) (Cronkite News photo by Griselda Nevarez)
In a committee hearing on the resolution to undermine the voter-approved minimum wage hike, Sen. Robert Meza, D-Phoenix, warned his GOP colleagues that a wave is coming in the form of a young, educated, and arguably angry voter fed up with legislators who don’t listen to the people.
Smith isn’t so sure.
“You know if you’re a Republican sitting in a safe district, you can do just about anything,” he said. “Is there gonna be a backlash? Yeah, I think some of these things are going to be a bit too far. Is the backlash gonna extend to throwing people out of office? No.”
Legislation voters likely won’t love
Critics say that Republican lawmakers are pushing ideas to make legislators’ lives easier at the expense of voters, who would be cut off from vital knowledge about their elected officials and in some cases denied opportunities to vote. Here are a few examples of those bills they oppose – many have failed, but others are still making their way through the process.
SB 1023
Sponsored by Sen. John Kavanagh, the bill would have hidden the identities of most individuals who donate to political campaigns and legislative candidates in elections. Roughly three out of every four donors would not have their identities disclosed. Kavanagh won’t pursue the bill after facing some criticism from his GOP colleagues.
HB 2153
Sponsored by Rep. Vince Leach, the bill would bar Arizona municipalities from requiring politically active, tax-exempt organizations from revealing their donors. No city, county or town currently does this, but Tempe is considering the idea. The bill already passed the House, but must now be voted on in the Senate.
HB 2256
Sponsored by Rep. Bob Thorpe, the bill would undermine a recent ruling by the Arizona Court of Appeals that found records stored on public official’s personal media devices are subject to public records laws. The bill would exempt those records, even if a public official was using a personal device to conduct official business. The bill never received a hearing.
SCR 1034
Sponsored by Senate President Steve Yarbrough, the resolution would increase the members serving on the Independent Redistricting Commission, the body responsible for redrawing Arizona’s congressional and legislative district boundaries. The bill has faced criticisms that it re-politicizes a process that voters explicitly don’t want legislators to be involved in. It awaits a vote on the Senate floor.
SCR 1002
Sponsored by Sen. David Farnsworth, the resolution sought to require voters to re-consider statewide initiatives or referendums every 10 years, essentially putting laws up for a revote each decade, something not required of laws approved by the Legislature. The resolution never received a hearing.
SCR 1016 and HCR 2026
Sponsored by Sen. Sylvia Allen and House Speaker J.D. Mesnard, the resolutions second-guess the voters, who in 2016 approved an initiative to hike the minimum wage and give protections for employees who need paid sick leave. Mesnard’s resolution would weaken those protections, while Allen’s goes further and seeks to freeze the minimum wage at its current rate of $10.50 per hour, rather than let it climb to $12 as voters approved. Both measures are working their way through the Capitol.
HCR 2022
Sponsored by Rep. Travis Grantham, the resolution would eliminate primaries when it comes to electing U.S. senators to represent Arizona in Congress. Legislators, not voters, would get to decide which partisan candidates run in the general election. It was approved in a House committee, but awaits a vote by the full chamber.
A Senate panel voted Thursday to erect some new hurdles in the path of those seeking to recall state and local elected officials.
SB 1434 crafted by Sen. David Gowan, R-Sierra Vista, adds new requirements for paid circulators and those from other states to first have to register with the secretary of state. This mirrors changes the Republican-controlled Legislature already have imposed on those proposing new laws through initiatives.
The legislation also spells out in detail exactly how petitions must be formatted with language allowing legal challenges if the forms are not in “strict compliance” with those standards.
David Gowan
Potentially most significant is that it permits anyone challenging the recall to demand that paid circulators show up in court. And if that person does not appear, it requires judges to disqualify all the signatures that person collected, regardless of whether there is other evidence to show that the signature is valid and the signer does support the recall.
That provision, too, already exists for initiative petitions.
Another bill approved Thursday by the Judiciary Committee permits, but does not require, county election officials to reach out to voters who forget to sign the envelopes in which they return their early ballots.
This version of SB 1032 is less severe than the original proposal by Sen. Michelle Ugenti-Rita, R-Scottsdale, which would have banned the practice entirely.
But Sen. Martin Quezada, D-Glendale, said that still leaves the door open for inconsistent practices across the state should some county recorders decide that they don’t want to do that. And that effectively would nullify any ballot within an unsigned envelope.
Both measures drew strong opposition from the League of Women Voters.
Rivko Knox, the organization’s lobbyist, told lawmakers that her members oppose all efforts to require “strict compliance” with election laws, where technical violations can disqualify petition drives.
Rivko Knox
“The Arizona Constitution speaks favorably and strongly in support of direct democracy, as does the League,” she said. “And although direct democracy remains in our laws, so many barriers have been placed before it that it may shortly become a part of history and unusable by Arizona citizens.”
Knox also said there is “some irony” in the fact that lawmakers have not extended that requirement for strict compliance to their own nominating petitions or those of other elected officials.
“Why should the latter not be subject to all the hoops that a recall petition would be subject to if this bill is passed?” she asked. “Does this Legislature believe those circulating nominating petitions are somehow more trustworthy than those circulating recall petitions?”
The issue of early ballots and unsigned envelopes addresses a different problem.
Election officials in each of the 15 counties had their own policies of whether to try to contact voters when ballots showed up without the legally required signature. There also were differing practices about how much time voters had to come in and make the fix, with some setting the deadline at 7 p.m. on Election Day and others giving voters up to five days after.
Secretary of State Katie Hobbs, responding to a lawsuit filed by the Navajo Nation, agreed to a uniform standard of five days.
Attorney General Mark Brnovich vetoed that agreement, saying Hobbs lacked the authority to make such a change. That sent the issue to the Legislature to resolve, which is what SB 1032 is designed to do.
But that language allowing and not requiring election officials to seek out voters who forgot to sign their envelopes annoyed Randy Perez, the democracy director for Living United for Change in Arizona.
He told lawmakers there were thousands of ballots that were not counted last election. And Perez said this bill, along with other moves by the Republican-dominated Legislature, has an ulterior motive.
“We know these bills are not in a silo,” he said.
“This Legislature has a horrible, horrible partisan history of attacking the right to vote,” Perez continued. And he said LUCHA believes that Republicans are pushing this now because they fear they will lose their legislative majorities in the 2020 election.
“We know that we are only one seat away from power in the House and two seats away from power in the Senate,” Perez said, referring to the 31-29 GOP edge in the House and 17-13 margin in the Senate. “And we know that bills like this will not be able to move forward in the future.”
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.
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