By Howard Fischer
Capitol Media Services
PHOENIX -- 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, 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 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 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 accusing of collecting four ballots during the state's August primary election and putting them in a ballot box where they were counted.