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.
Arizona’s law making it a crime to return someone else’s early ballot is illegal, the 9th Circuit Court of Appeals ruled Monday.
In a divided decision, the majority concluded that the Republican-controlled Legislature enacted the restriction in 2016 with the goal of suppressing minority votes. And Justice William Fletcher, a President Clinton appointee writing for the majority, said the record shows that HB 2023 had that effect.
The court also voided a separate provision which says that the entire ballot is discarded if someone votes in the wrong precinct on Election Day. The judges said the state should count the votes that would have been legal had the person been at the right place, such as for a statewide office like governor.
Monday’s ruling drew an angry reaction from Sen. Michelle Ugenti-Rita, R-Scottsdale, who pushed the legislation through the process.
Michelle Ugenti-Rita
“Bull hockey,” she said when informed of the ruling. “They’re just a liberal court.”
And Ugenti-Rita said it was never her motivation to suppress minority votes, which are more likely to go to Democrats.
She also dismissed as irrelevant the court’s findings that there was no real evidence that allowing individuals to collect the ballots of others ever resulted in fraud.
“Do I need a bunch of people to fall off a balcony before I’m like, ‘You know what’s a good idea? We should probably put up a railing,’ ” Ugenti-Rita said. “Or does logic and common-sense prevail (and) tells me it’s not good practice?”
She was not alone. Four of the 11 justices that heard the case filed separate dissents saying they found nothing illegal about the policies.
Ugenti-Rita is now hoping for U.S. Supreme Court review.
What’s behind “ballot harvesting” is the fact that most Arizonans receive early ballots. They can be filled out and mailed back or delivered to polling places on election day.
But the law requires mailed ballots to be delivered by election day. So anything dropped in a mailbox within a week or so may not get counted.
William Fletcher
Political and civic groups had for years gone into neighborhoods, asking people if they have returned their ballots and, if not, offering to take it to polling places on their behalf.
The law does have exceptions for family members, those living in the same household, and caregivers for those in nursing homes and similar facilities.
History of targeting minorities
Republicans argued that presents too many opportunities for mischief, though during debate they could not cite a single confirmed incident where a ballot was altered or did not get delivered. In fact, Sen. J.D. Mesnard, then a Republican member of the House from Chandler, argued it’s irrelevant whether there is fraud or not.
“What is indisputable is that many people believe it’s happening,” he said at the time. “And I think that matters.”
After the law was enacted it was challenged by the Arizona Democratic Party, the Democratic National Campaign Committee and the Democratic Senatorial Campaign Committee.
Fletcher, in writing for the majority, said the change in law cannot be examined solely in a vacuum.
“For over a century, Arizona has repeatedly targeted its American Indian, Hispanic, and African-American citizens, limiting or eliminating their ability to vote and to participate in the political process,” he said.
Fletcher cited extensive testimony at trial about the number of ballots collected and turned in by others.
More significant, he said the record from the trial shows that prior to the 2016 law minorities were more likely than non-minorities to get someone else to turn in their ballots.
“The district court found that, in contrast, the Republican Party has not significantly engaged in ballot collection as a Get Out the Vote strategy,” Fletcher wrote.
“The base of the Republican Party in Arizona is white,” he continued. “Individuals who engaged in ballot collection in past elections observed that voters in predominantly white areas were not as interested in ballot-collection services.”
Bad Mail Service
And there are other factors.
For example, Fletcher wrote, white registered voters have home mail services at a rate over 350 percent higher than their American Indian counterparts.
Ugenti-Rita disputed any suggestion that minorities who seek an early ballot have a harder time voting them than others.
“How could it be inconvenient to return your ballot when you’ve elected to receive it that way?” she asked. “That literally defies logic.”
But Fletcher, in his ruling, did not see it that way.
“In urban areas of heavily Hispanic counties, many apartment buildings lack outgoing mail services,” he wrote, meaning they can get the blank ballot without leaving the building but would have to go somewhere else to return it.
And Fletcher said there was some testimony that incoming and outgoing mail often go missing, saying that “especially in low-income communities, frequent mail theft had led to distrust in the mail service.”
“The adverse impact on minority communities is substantial,” the judge wrote. “Without access to reliable and secure mail services and without reliable transportation, many minority voters prefer instead to give their ballots to a volunteer.”
The majority judges also found something else to buttress their findings that the legislation was racially motivated.
Fletcher cited an early version of the measure introduced in 2011 by then-Sen. Don Shooter, R-Yuma. And he pointed out that the trial judge specifically found that Shooter was “in part motivated by a desire to eliminate what had become an effective Democratic GOTV strategy.”
The trial judge then noted that Shooter had won his 2010 election with just 53 percent of the vote – receiving 83 percent of the non-minority vote but only 20 percent of the Hispanic vote.
The GOP-controlled Legislature eventually adopted the current law in 2016. But Fletcher said that, in the opinion of the trial judge, nothing had really changed.
“Republican legislators were motivated by the unfounded and often far-fetched allegations of ballot collect fraud made by former Sen. Shooter,” Fletcher said.
‘Discriminatory intent’
Ugenti-Rita said there is a record of the problems elsewhere caused by ballot harvesting. In North Carolina there was an investigation launched amid allegations that Republicans there illegally collected the ballots of minority voters and then purposely failed to turn them in.
But Fletcher pointed out that what had occurred there would have been illegal even under pre-2016 Arizona laws which already made it a crime to tamper with or refuse to deliver an early ballot.
“Criminalization of the collection of another person’s ballot was enacted with discriminatory intent,” Fletcher wrote, a direct violation of not just the U.S. Constitution but also the Voting Rights Act. And he said that any distrust of third-party ballot collection that currently exists is “`because of the fraudulent campaign mounted by proponents of HB 2023.”
“To the degree that there has been any fraud, it has been the false and race-based claims of the proponents of HB 2023,” the judge said. “It would be perverse if those proponents, who used false statements and race-based innuendo to create distrust, could now use that very distrust to further their aims in this litigation.”
On the issue of out-of-precinct voting, Fletcher wrote that there are multiple reasons people show up at the wrong location. One, he said, involves frequent changes in polling locations.
In Maricopa County, for example, at least 43 percent of polling locations changed between 2006 and 2008, with 40 percent changing between 2010 and 2012. And the judge said that there were fewer changes in where white people vote.
Fletcher also said that Arizona has a high percentage of renters which leads to a high percent of people changing address who then have to find a new polling place, even if they moved only a short distance away. And he said there are findings that people voting at the wrong location is more frequent in districts populated with renters, groups he said, which “are disproportionately composed of minorities.”
Editor’s note: This story has been revised to a more comprehensive form from the original version.
A man held in jail for 40 days after Border Patrol agents improperly performed a drug test has no right to sue, a federal appeals court ruled Tuesday.
In a divided decision, the majority of the three-judge panel of the 9th Circuit Court of Appeals acknowledged that the actions of one of the agents “may have been negligent and even abusive.” That includes threatening Armando Nieves Martinez that if he didn’t confess to transporting methamphetamine in the windshield washer solution in his vehicle that his whole family would be incarcerated.
But Judge Karen Schreier, writing for the majority, said the officers — and the government — were protected from civil suit because they were performing a discretionary function.
Tuesday’s ruling drew a sharp response from appellate Judge William Fletcher.
He agreed that the decision to test the windshield washer fluid was discretionary. But Fletcher said if the agents had followed the written instructions that came with the drug test they would have realized immediately that the washer fluid contained no drugs and Nieves never would have been detained beyond the initial stop.
Attorney David Abney, who represents Nieves, said the majority misinterpreted the law and vowed to appeal.
Court records show that Nieves, a commercial grape grower, left Caborca, Son. in August 2011 with his wife and two children headed to Chandler to go shopping.
They went through one Border Patrol checkpoint, showing their visas. A drug detection dog did not alert.
At a second checkpoint the agent said the dog detected an odor. Based on that, the vehicle was pulled over but nothing was immediately found.
The agents then drove the vehicle to the Ajo Border Patrol station for a more thorough search, including checking the windshield wiper fluid. At least one field test indicated the possible presence of methamphetamine.
That resulted in Nieves being interrogated. After he denied any knowledge of drugs, one agent told him that if he did not confess his wife would go to a prison in Kentucky, his son would go to a federal prison and his minor daughter would be placed into government custody.
That resulted in a confession, one he later recanted, telling agents he had done so only so the agents would release his family.
Only later did actual laboratory tests show there were no drugs in the windshield fluid. And when no drugs were found after further examination of the vehicle, the charges were dismissed — after he had spent 40 days in custody.
He then filed suit.
Schreier agreed that the test kits counseled against using them to test liquids. But because they did not preclude such use, she said, the agents did nothing wrong.
But Fletcher said that glosses over some crucial facts.
He said the first kit used by agents does say that liquid could be tested by wetting paper with the liquid, drying the paper, and putting the paper in a test pack. But there was something else in the instructions.
“The choice of paper is critical,” those instructions read. “NEVER use brown paper, hand towels or newsprint.”
“Contrary to the instructions, Agent Mendez used a paper hand towel to perform Test A,” Fletcher wrote.
And the problems are even worse, the judge said.
He said that test, if properly performed can indicate the presence of methamphetamine or amphetamine. But Fletcher pointed out that the test instructions themselves say a second test, Test U, is needed to determine which of the two drugs — if either — had been detected. And the agent did not do the second test.
“If Mendez has performed Test U, the test would have revealed that neither methamphetamine nor amphetamine was present in the windshield washer fluid,” the judge said. And Nieves never would have been locked up for 40 days waiting for the final lab results.
The judge also said that the questioning technique that resulted in the confession — after he had denied having any drugs — were questionable.
Fletcher also pointed out something not in the majority opinion: the background of the person Border Patrol arrested.
He noted that Nieves is the patriarch of a Mexican family with a prosperous grape-growing business in Sonora, a business with an annual gross income of about $3 million. And he said that Nieves and his family typically travel across the border five or six times a year.
In this July 16, 2019, file photo, the Supreme Court is seen in Washington. (AP Photo/Carolyn Kaster)
Attorney General Mark Brnovich is warning the U.S. Supreme Court that all of Arizona’s election laws could be subject to challenge if it doesn’t overturn an appellate ruling voiding the state’s “ballot harvesting” laws as racially motivated.
In a new filing Monday, Brnovich lays out for the justices why he believes the 9th Circuit Court of Appeals got it wrong earlier this year when it declared that the state acted illegally in making it a crime to return someone else’s early ballot. He said the state had good reason to act in a way to prevent the potential for fraud and intimidation of voters by political operatives who were collecting these ballots.
But Brnovich also told the justices they have to slap down the logic used by the appellate judges — that Arizona lawmakers enacted the ballot-harvesting law with the goal of suppressing minority vote — in voiding the law. He said if that verbiage is allowed to stand, it could pave the way for future challenges, and not just here.
Mark Brnovich
“If you accept the logic of the 9th Circuit, it would jeopardize every voting integrity law in almost every state,” he told Capitol Media Services.
“This erroneous finding could be weaponized in future litigation to undermine Arizona’s autonomy to govern itself,” Brnovich separately wrote to the high court. He called the conclusion of the 9th Circuit majority “a loaded charge with potentially long-term legal, social and practical consequences.”
The attorney general also wants the justices to void another part of the ruling which says the state cannot simply discard the entire ballot of someone who votes in the wrong precinct on Election Day. Here, too, the appellate judges said race played a factor, saying that minorities were more likely to be disenfranchised by the laws.
In his filing, Brnovich does not dispute what the 9th Circuit said is evidence of historical racism in Arizona. But he said most of the incidents cited by the appellate court are ancient history, with some going back to territorial days.
More to the point, he said the appellate judges ignored other non-racial reasons for why minorities are more likely impacted by ballot harvesting laws, including poverty, employment, home ownership, mail delivery and health.
Most Arizonans receive early ballots which can be filled out and mailed back or delivered to polling places on Election Day.
But the law requires mailed ballots to be delivered by Election Day. So anything dropped in a mailbox within a week or so may not get counted.
Political and civic groups had for years gone into neighborhoods, asking people if they have returned their ballots and, if not, offering to take it to polling places on their behalf.
William Fletcher
Republican legislators concluded in 2016 that created too many opportunities for mischief, though during debate they could not cite a single confirmed incident where a ballot was altered or did not get delivered. Brnovich told the high court that is irrelevant.
“Prohibiting unlimited third-party ballot harvesting is a commonsense means of protecting the secret ballot and preventing undue influence, voter fraud, ballot tampering, and voter intimidation,” he wrote.
And Brnovich rejected the contention that the law is simply an attempt by Republicans who control the Legislature to get a political edge. He pointed to the 2005 recommendations of the Commission on Federal Elections Reform, co-chaired by former President Jimmy Carter, a Democrat, that said states should prohibit outsiders from handling absentee ballots of others.
“There’s 20 states that have similar measures,” Brnovich said.
Anyway, Brnovich said, there are exceptions on who can handle ballots, ranging from election officials and mail carrier to family and household members and caregivers.
He also is asking the court to ignore one thing cited by appellate Judge William Fletcher, a President Clinton nominee, in writing the majority decision: comments by then-Sen. Don Shooter, R-Yuma, who attempted to get colleagues to enact a similar law in 2011. That was after he won his 2010 election with just 53 percent of the vote — receiving 83 percent of the non-minority vote but only 20 percent of the Hispanic vote.
Fletcher said Shooter was “in part motivated by a desire to eliminate what had become an effective Democratic GOTV strategy.” And he said that, in finally enacting the laws in 2016, “Republican legislators were motivated by the unfounded and often far-fetched allegations of ballot collection fraud made by former Sen. Shooter.”
Brnovich called that irrelevant.
“Each legislator is an independent actor,” the attorney general wrote.
“It has long been settled that what motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it,” he said. Anyway, Brnovich said, even if there is a correlation between race and political affiliation — and even if legislators are aware of that — there is no proof that Arizona lawmakers acted with racial motives.
Then there’s what Fletcher called the historical evidence of racism that the judge said has to be considered in looking at the law.
“For over a century, Arizona has repeatedly targeted its American Indian, Hispanic, and African-American citizens, limiting or eliminating their ability to vote and to participate in the political process,” he said.
More significant, he said the record from the trial shows that prior to the 2016 law minorities were more likely than non-minorities to get someone else to turn in their ballots.
“The district court found that, in contrast, the Republican Party has not significantly engaged in ballot collection as a Get Out the Vote strategy,” Fletcher wrote.
“The base of the Republican Party in Arizona is white,” he continued. “Individuals who engaged in ballot collection in past elections observed that voters in predominantly white areas were not as interested in ballot-collection services.”
There is no indication when the justices will decide whether to hear the appeal.
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.
Voters deliver their ballot to a polling station, Tuesday, Nov. 3, 2020, in Tempe, Ariz. (AP Photo/Matt York)
The question of whether Arizona gets to keep its ban on “ballot harvesting” could turn on what was in the mind of a now-ejected state legislator who first proposed the law and how that affected his colleagues.
During a two-hour hearing Tuesday, some of the justices of the U.S. Supreme Court were told that it was then-Sen. Don Shooter who first attempted in 2011 to make it a crime for anyone to collect anyone else’s voted ballot and take it to polling places. That came a year after Shooter had won his 2010 election with just 53% of the vote — receiving 83% of the non-minority vote but only 20% of the Hispanic vote.
It took five more years for lawmakers to actually pass the ballot harvesting law. But when it was challenged, Judge William Fletcher of the 9th Circuit Court of Appeals cited the early effort and concluded Shooter was “in part motivated by a desire to eliminate what had become an effective Democratic GOTV strategy.”
And Fletcher said nothing really changed between 2011 and 2016.
“Republican legislators were motivated by the unfounded and often far-fetched allegations of ballot collection fraud made by former Sen. Shooter,” the judge wrote.
Attorney General Mark Brnovich, defending the statute before the high court, told the justices that’s irrelevant.
Mark Brnovich
“You cannot impugn motive to one legislator to a group of 90 independent, co-equal actors spread across two houses in the legislature,” he said. And Brnovich said the law is a legitimate effort by lawmakers to minimize the possibility of fraud or coercion when political groups go door-to-door and seek to take someone’s ballot.
Brnovich also said there’s nothing inherent in the law that decreases the opportunity for minorities to vote which he said is the test under Section 2 of the Voting Rights Act, regardless of whether there is some evidence that minorities are more likely to depend on someone else to take their early ballots to the polls.
But his arguments weren’t helped by Michael Carvin who is representing the Arizona Republican Party, which was granted the right to intervene to help defend the 2016 law. He was asked by Justice Amy Coney Barrett why his client is in the case.
“Because it puts us at a competitive disadvantage relative to Democrats,” he acknowledged.
“Politics is a zero-sum game,” Carvin continued. “And every extra vote they get through unlawful interpretations of Section 2 hurts us. It’s the difference between winning an election 50 to 49 and losing an election.”
That, in turn, goes to another finding by the 9th Circuit last year in voiding the law. Fletcher said the record shows that prior to 2016 minorities were more likely than non-minorities to get someone else to turn in their ballots. By contrast, Fletcher wrote, “the Republican Party has not significantly engaged in ballot collection as a get-out-the-vote strategy.”
There are some indications that the conservative justices may defer to the decision of Arizona lawmakers in enacting the 2016 law. But there are facts that complicate the issue.
One is that there was no actual evidence of fraud cited by Arizona lawmakers in enacting the law. In fact, statutes already on the books made it a crime to refuse to turn in someone else’s ballot.
But then-Rep. J.D. Mesnard, R-Chandler, argued that is irrelevant.
“What is indisputable is that many people believe it’s happening,” he told colleagues during floor debate. “And I think that matters.”
Don Shooter
And Brnovich cited the 2005 recommendations of the Commission on Federal Elections Reform, co-chaired by former President Jimmy Carter, a Democrat, which said states should prohibit outsiders from handling absentee ballots of others.
Anyway, Brnovich told the justices, it’s not like this law — and the other challenged one that says ballots cast in the wrong precinct are not counted — significantly impact the ability of minorities to vote.
He acknowledged there are “slight statistical differences” in how both laws affect minorities. But Brnovich said the court needs to look at the totality of the circumstances.
“No one was denied the opportunity,” he said.
He said the state provides many ways of voting, including early voting and at voting centers ahead of Election Day. And the state has a “no excuse absentee balloting,” meaning that anyone can ask for an early ballot by mail.
“So there are a whole plethora of options in ways for people to exercise their right to the franchise,” Brnovich said.
Chief Justice John Roberts specifically asked attorney Jessica Ring Amunson why that report by the commission that Carter co-chaired does not provide enough reason for lawmakers to ban ballot harvesting. She represents Secretary of State Katie Hobbs who has taken the position that both the ban on ballot harvesting and the prohibition on counting votes cast in the wrong precinct violate federal law.
“States can have an interest in securing their elections through limiting ballot collections,” Amunson responded. “But when you look at the particular fact here, that does not appear to have been Arizona’s interest.”
Bruce Spiva, attorney for the Democratic National Committee, which filed the original suit, underlined the point, saying there’s nothing in the legislative record to suggest lawmakers were persuaded by anything in that commission report. And he emphasized that legislators also had no evidence of voter fraud before enacting the 2016 law.
Amunson said there is something the court does need to consider.
“What we have is a record that shows that Native Americans and Latinos in Arizona rely disproportionately on ballot collection and white voters do not,” she said. And that, Amunson said, comes back to Shooter.
“The entire purpose of introducing the law by Sen. Shooter was to keep Hispanics in his district from voting and was premised on far-fetched racially tinged allegations that Latinos in the district were engaging in fraud with respect to ballot collection,” Amunson said.
Shooter, who later was elected to the state House, is no longer a legislator. He was expelled by his colleagues in 2018 after being accused of violating policies against sexual harassment.
Amunson also told the justices they should take note the admission by Carvin about the political nature of this legal fight.
“Candidates and parties should be trying to win over voters on the basis of their ideas, not trying to remove voters from the electorate by imposing unjustified and discriminatory burdens,” she said.
There was some indication that the justices could end up with a split decision on the two issues.
On one hand, they noted, the 2016 law changed long-standing practices allowing ballot harvesting. That might be considered an affirmative violation of the Voting Rights Act.
By contrast, they noted the policy of counting only the votes cast at the right precinct dates back to 1970. And Brnovich argued that is necessary to properly administer the voting system.
He also said that the extent of the impact of that law is minimal, saying that in the 2016 election there were only 3,970 ballots that were rejected because they were cast in the wrong precinct out of more than 2.6 million votes cast by all methods, including early and day-of voting.
But Amunson said the important thing for the justices to consider is the evidence that minority voters were twice as likely to have their ballots rejected because of being in the wrong precinct than white voters.
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.
The sun rises behind the Supreme Court on Capitol Hill in Washington, Monday, June 29, 2020. (AP Photo/Patrick Semansky)
It’s not just the future of whether Arizona gets to keep its ban on “ballot harvesting” that the U.S. Supreme Court will decide this week.
Hanging in the balance could be how far Arizona — and other states — get to go in enacting new restrictions on registration and voting, particularly when they are found to have disparate effect on minorities.
On paper, the justices are looking at the simple question of whether the state can regulate who can take someone else’s voted early ballot to a polling place. That had been the practice of some civic groups in Arizona for years.
They would go door to door and ask people if they had remembered to return their early ballot. And, given that a ballot has to be received by 7 p.m. on Election Day, they offered to take it to a polling place rather than risk it not arriving on time.
In 2016, however, the Republican-controlled legislature voted to make that a felony. The law has only a handful of exceptions, like family members, people living in the same household and caregivers.
Proponents argued that this would prevent fraud.
But during legislative debate supporters could not cite a single instance of someone’s early ballot being stolen, manipulated or discarded. In fact, J.D. Mesnard, then a state representative from Chandler and now a senator, argued that it’s irrelevant whether there is fraud or not.
J.D. Mesnard
“What is indisputable is that many people believe it’s happening,” he said. “And I think that matters.”
The state and national Democratic parties sued and a trial judge upheld the law.
But in a divided decision, a majority of the 9th Circuit Court of Appeals concluded that what actually was behind the law was a desire of the GOP majority in the legislature to suppress minority votes. And Justice William Fletcher, an appointee of President Clinton, writing for the majority, said the record shows it had that effect.
What makes that particularly relevant is the current debate in Arizona and elsewhere on legislation to alter registration and voting procedures.
For example, one measure already approved this year by the Republican majority would remove people from the permanent early voting list if they did not cast an early ballot during two successive election cycles.
Democrats argued this would have a harsher effect on minorities, saying they often are the ones who come out and vote only when there are issues of interest. And that, they said, occurred this year with a record turnout.
Another effort would have required voters to provide certain identification when they send in early ballots. And a third would have effectively outlawed early ballots, saying people could still get them by mail but would have to turn them in at a polling place.
All that goes to a key question before the high court: How far can a state go in the name of election security — especially when there is no proof of a problem — when there is evidence that minorities are more likely to be affected.
In this case, Fletcher said the record from the trial court showed that, prior to the 2016 law, minorities were more likely than non-minorities to get someone else to turn in their ballots.
“The district court found that, in contrast, the Republican Party has not significantly engaged in ballot collection as a Get Out the Vote strategy,” he wrote.
“The base of the Republican Party in Arizona is white,” Fletcher continued. “Individuals who engaged in ballot collection in past elections observed that voters in predominantly white areas were not as interested in ballot-collection services.”
That, in turn, relates to Section 2 of the Voting Rights Act. It bars enactment of any voting practice of procedure which results in “denial or abridgment” of the right to vote on account of race or color.
Mark Brnovich
Attorney General Mark Brnovich, in defending the law, said there is nothing inherent in the ballot harvesting statute that decreases the opportunity for minorities to vote. He said that is the test under Section 2, regardless of whether there is some evidence that minorities are more likely to depend on someone else to take their early ballots to the polls.
He acknowledged there are “slight statistical differences” in how the law affect minorities. But Brnovich said the court needs to look at the totality of the circumstances.
“No one was denied the opportunity,” he said.
He said the state provides many ways of voting, including early voting and at voting centers ahead of Election Day. And the state has a “no excuse absentee balloting,” meaning that anyone can ask for an early ballot by mail.
“So there are a whole plethora of options in ways for people to exercise their right to the franchise,” Brnovich said.
But there is a political side to all of this.
The Arizona Republican Party was granted the right to intervene to help defend the 2016 law. That led to a question by Justice Amy Coney Barrett about why his client is in the case.
“Because it puts us at a competitive disadvantage relative to Democrats,” he acknowledged.
“Politics is a zero-sum game,” Carvin continued. “And every extra vote they get through unlawful interpretations of Section 2 hurts us. It’s the difference between winning an election 50 to 49 and losing an election.”
The justices actually have two Arizona laws before them.
Also at issue is the legality of a state statute that says only votes cast at the proper precinct are counted. Challengers said there is no reason to ignore votes that would be legal regardless of where they were cast, like for a president or statewide office.
Brnovich argued that is necessary to properly administer the voting system.
He also said that the extent of the impact of that law is minimal, saying that in the 2016 election there were only 3,970 ballots that were rejected because they were cast in the wrong precinct out of more than 2.6 million votes cast by all methods, including early and day-of voting.
But Jessica Ring Amunson, representing challengers, said the important thing for the justices to consider is the evidence that minority voters were twice as likely to have their ballots rejected because of being in the wrong precinct than white voters.
Arizonans remain legally barred from taking someone else’s ballot to the polls, at least for this election.
Without comment, the U.S. Supreme Court on Friday agreed to review the decision of a federal appeals court which earlier this year had voided the state’s ban on “ballot harvesting” after concluding that the Republican-controlled legislature enacted the 2016 law with the intent of suppressing minority votes. That law makes it a felony, subject to one year in state prison and a $150,000 fine, to handle anyone else’s already voted ballot.
Judge Amy Coney Barrett, President Donald Trump’s nominee to the Supreme Court, meets with Sen. Mike Lee, R-Utah, not pictured, at the Capitol, Tuesday, Sept. 29, 2020 in Washington. (Stefani Reynolds/Pool via AP)
The only exceptions are for family members, others in the same household, caregivers, election workers and the postal service.
Friday’s decision does not necessarily mean the law will be overturned. But it does mean that at least four justices found sufficient merit to arguments by Republican Attorney General Mark Brnovich and the Arizona Republican Party that lawmakers, in enacting the law, had valid concerns about the possibility of fraud.
Friday’s decision also means the justices will review another part of the same 2016 law which says if someone votes in the wrong precinct, all of the votes that person cast are discarded. The appellate court said the state should count the votes that would have been legal had the person been at the right place, such as for a statewide office like governor.
The justices now need to set a date for a hearing, presumably one where Trump’s latest appointee, Amy Coney Barrett, will be sitting on the bench. A ruling may not come until June.
What’s behind the whole practice is the fact that most Arizonans receive early ballots. They can be filled out and mailed back or delivered to polling places.
But state law requires mailed ballots to be delivered no later than 7 p.m. on Election Day. That means anything dropped in a mailbox within a week or so may not get counted.
Political and civic groups have in recent years gone into neighborhoods, asking people if they have returned their ballots and, if not, offering to take the papers to polling places on their behalf. But Republicans, in approving HB 2023 to ban the practice in 2016, argued that presents too many opportunities for mischief.
During the debate, however, supporters of the ban did not cite a single confirmed incident where a ballot was altered or did not get delivered. In fact, then-Rep. J.D. Mesnard, R-Chandler, argued it’s irrelevant whether there is fraud or not.
“What is indisputable is that many people believe it’s happening,” he said. “And I think that matters.”
The state and national Democratic parties sued and a trial judge upheld the law.
But in a divided decision, a majority of the 9th Circuit Court of Appeals concluded that what actually was behind the law was a desire by the GOP majority in the legislature to suppress minority votes. And Justice William Fletcher, a nominee of President Clinton, writing for the majority, said the record shows it had that effect.
He said the change in law cannot be examined solely in a vacuum.
“For over a century, Arizona has repeatedly targeted its American Indian, Hispanic and African-American citizens, limiting or eliminating their ability to vote and to participate in the political process,” Fletcher wrote.
The judge cited extensive testimony at trial about the number of ballots collected and turned in both others. More significant, he said the record from the trial shows that before the law was enacted in 2016, minorities were more likely than non-minorities to get someone else to turn in their ballots.
“The district court found that, in contrast, the Republican Party has not significantly engaged in ballot collect as a Get Out the Vote strategy,” Fletcher said.
“The base of the Republican Party in Arizona is white,” he continued. “Individuals who engaged in ballot collections in past elections observed that voters in predominantly white areas were not as interested in ballot-collect services.”
Mark Brnovich
Brnovich, in his arguments to the high court, said the fact that there were no documented cases of fraud related to ballot harvesting is irrelevant.
“Prohibiting unlimited third-party harvesting is a commonsense means of protecting the secret ballot and preventing undue influence, voter fraud, ballot tampering, and voter intimidation,” he wrote.
And Brnovich rejected the contention that the law is simply an attempt by the Republicans who control the House and Senate, then and now, to get and keep a political edge. He pointed to the 2005 recommendations of the Commission on Federal Elections Reform, co-chaired by former President Jimmy Carter, a Democrat, that said states should prohibit outsiders from handling absentee ballots of others.
“There’s 20 states that have similar measures,” Brnovich said. And then there are the exceptions for family and household members and caregivers.
Brnovich also wants the justices to ignore one thing cited by Fletcher in the ruling: comments by then-Sen. Don Shooter, R-Yuma, who attempted to get colleagues to enact a similar law. That was after he won his 2010 election with just 53% of the vote — receiving 83% of the non-minority vote but only 20% of the Hispanic vote.
Fletcher said Shooter was “in part motivated by a desire to eliminate what had become an effective Democratic GOTV strategy.” And he said that, in finally enacting the laws in 2016, “Republican legislators were motivated by the unfounded and often far-fetched allegations of ballot collection made by former Sen. Shooter.”
Brnovich told the justices all that is irrelevant.
“Each legislator is an independent actor,” the attorney general wrote.
“It has long been settled that what motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it,” he said. “Anyway, Brnovich said, even if there is a correlation between race and political affiliation — and even if legislators are aware of that — there is no proof that Arizona lawmakers acted with racial motives.
Friday’s decision also is a setback for Secretary of State Katie Hobbs.
In her own legal filings with the Supreme Court, she pointed out that it was the secretary of state’s office that had been sued, years earlier, before she held the office. And Hobbs said that means she, as the current holder of the office, had sole authority to decide whether to appeal the 9th Circuit ruling.
Hobbs said she believes the appellate judges got it right. And she argued, unsuccessfully, that Brnovich cannot maintain a legal action to defend the law.
Arizona’s ban on “ballot harvesting” will remain in place, at least for the March 17 presidential preference primary.
In a brief order Tuesday, the 9th Circuit Court of Appeals granted the plea by Attorney General Mark Brnovich for the justices not to enforce their ruling last month which found the ban unconstitutional. That will give Brnovich the time to seek review by the U.S. Supreme Court.
Tuesday’s order also leaves intact a separate law which says that a person’s entire ballot is discarded if he or she votes in the wrong precinct on Election Day.
But Brnovich could face an uphill fight: The nation’s high court accepts only a small percentage of the cases it is asked to review.
The central issue relates to the fact that most Arizonans receive early ballots. They can be filled out and mailed back or delivered to polling places on Election Day.
With a hard-and-fast deadline of ballots being delivered by 7 p.m. on Election Day, some political and community groups had made it a practice to go door to door, especially in neighborhoods where they thought sentiment would run in their direction, offering to take unmailed ballots to polling places.
The Republican-controlled Legislature voted in 2016 to make that a felony.
In a divided decision last month the majority of the appellate court concluded lawmakers enacted the restriction with the goal of suppressing minority votes. And Justice William Fletcher, writing for the majority, said the record shows that HB 2023 had that effect.
Fletcher and the majority also brushed aside arguments that lawmakers were simply trying to preclude fraud, with collectors deciding which ballots to return and which to trash. He said that already was illegal before 2016 with existing laws that made it a crime to tamper with or refuse to deliver an early ballot.
What that left, he said, is the improper motive behind the law.
“Criminalization of the collection of another person’s ballot was enacted with discriminatory intent,” Fletcher wrote, a direct violation of not just the U.S. Constitution but also the Voting Rights Act. And he said that any distrust of third-party ballot collection that currently exists is “`because of the fraudulent campaign mounted by proponents of HB 2023.”
“To the degree that there has been any fraud, it has been the false and race-based claims of the proponents of HB 2023,” the judge said. “It would be perverse if those proponents, who used false statements and race-based innuendo to create distrust, could now use that very distrust to further their aims in this litigation.”
Tuesday’s stay by the appellate court came over the objections of the Democratic National Committee and the Arizona Democratic Party who had successfully sued to have the 2016 law voided. Their lawyers urged the court to rebuff Brnovich and implement the ruling immediately.
“Thousands more will be able to vote a mail-in ballot because they will be able to receive the assistance they need to deliver it to be counted,” wrote attorney Dan Barr.
“Absent such relief, these voters’ rights remain, at best, in limbo, or, at worst, wholly denied for yet another election,” he said. “The harm is real and irreparable.”
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