Arizona Ban on Ballot Harvesting Will Remain in Place
By Howard Fischer
Capitol Media Services
PHOENIX -- 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 to 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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