By Howard Fischer
Capitol Media Services
PHOENIX -- Reversing course, Secretary of State Katie Hobbs now wants a federal appeals court to quash a trial judge's order giving Arizonans an extra 2 1/2 weeks to register to vote for this election.
In a new court filing, Hobbs said she always opposed scrapping the Oct. 5 deadline. Hobbs said she did not initially appeal for fear it would cause more confusion than simply leaving the order from U.S. District Court Judge Steven Logan in place.
But Hobbs is telling the appellate judges that if they overturn the order they should not do it summarily.
With people out there registering right now, she said, there should be some notice that the Oct. 23 deadline set by Logan is being voided. So she wants any order by the 9th Circuit Court of Appeals to provide a few more days to gather up those registrations, perhaps through this coming Friday.
And there's something else.
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.
All this comes as the appellate court heard arguments Monday about what do do now -- and how quickly to do it.
It was Logan who last week sided with Mi Familia Vota and the Arizona Coalition for Change, concluding that the COVID-19 outbreak and restrictions on travel and group activities imposed by Gov. Doug Ducey means there should be more time this year to get signed up to vote.
In her latest filing, Hobbs told the appellate judges she still believes -- as she told Logan -- that the lawsuit by two groups challenging the Oct. 5 deadline came too late. The decision not to appeal was amid concerns of causing more confusion.
"The secretary was prepared to accept the district court's order and work to implement it despite the hardships it causes for Arizona's election administrators,'' attorney Roopali Desai wrote for Hobbs.
As it turns out, that already is occurring, what with an appeal filed anyway by attorneys for the Republican National Committee and the National Republican Senatorial Committee. And on top of that, Attorney General Mark Brnovich, who had stayed out of the original fight, now wants the appellate judges to overturn Logan.
"Because of the appeal and the pending stay requests, the secretary, county recorders, and voters alike face the very uncertainly that she sought to avoid,'' Desai wrote explaining Hobbs' changed legal position.
But there's something else.
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 Wednesday. "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 now 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.''
Johnson also took a 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.''
But Zoe Salzman who represents those who want more time said the orders themselves kept people at home, closed businesses and malls where voter registrations would normally take place and even precluded large gatherings. All of that, she said, reduced registrations to a relative trickle to what they were before the COVID-19 restrictions.
As to why wait -- she did not sue until less than a week before the Oct. 5 deadline -- Salzman said she needed evidence to show that once Ducey lifted his restrictions in August that voter signup went back to near pre-COVID numbers. That, she argued, was necessary to prove to Logan that extending the deadline would definitely mean more people would be eligible to vote.
Not all the last-minute filings at the appellate court were seeking to void Logan's order.
The League of Women Voters and the Phoenix Indian Center, in their own legal papers, told the appellate judges that there are legitimate reasons to give people more time.
Attorney Jordan Elias criticized the arguments by the Republican interests that the extension is unnecessary because "it has never been easier to register to vote'' in Arizona, calling it a "let-them-eat-cake assertion.''
Elias said there are options like online registration for those who have a state-issued driver's license or identification card.
"That is not a viable option for many voters,'' he told the court.
"Fewer than half of the homes on tribal lands have reliable broadband access,'' Elias wrote. "Even if a voter on a reservation has access to broadband, the state of Arizona does not allow tribal IDs to be used as a form of identification to register to vote online, even though tribal enrollment is a valid form of proof of U.S. citizenship.''