By Howard Fischer
Capitol Media Services
PHOENIX -- The question of whether Arizona gets to keep its ban on "ballot harvesting'' could turn on whether a now-ejected state legislator who first proposed the law was trying to suppress minority votes -- and how his motive affected his colleagues.
During a two-hour hearing Tuesday, 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, something he suggested was due to fraud.
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,''
Attorney General Mark Brnovich, defending the statute before the high court, told the justices that's irrelevant.
"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 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.''
And Brnovich cited 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.
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 electio 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.
A ruling may not occur until June.
