Voting rights groups may be able to challenge Arizona law eliminating permanent early voting list
By Howard Fischer
Capitol Media Services
PHOENIX -- A 2021 statement by a veteran Republican lawmaker may be just enough to allow voting rights groups to challenge a law eliminating the state's permanent early voting list.
In a tentative ruling, U.S. District Court Judge Dominic Lanza rejected claims by Mi Familia Vota and others that the 2021 law unconstitutionally interferes with the right to vote.
Lanza said that the statute, approved by the Republican-controlled legislature, imposes only a minimal burden. And he said the state has presented legitimate reasons, including reducing costs of having to send out early ballots to people who may not be interested in using them.
But the judge said that evidence presented by challengers shows the law will have a disparate impact on different racial groups. And it's that effect -- coupled with the comments of Rep. John Kavanagh, R-Fountain Hills, that has Lanza telling the lawyers in the case that he's inclined to let the case go forward.
The law spells out that if someone does not return an early ballot in at least one of four prior elections -- meaning a primary and a general election in two successive years -- that person is dropped from what would no longer be called the permanent early voting list.
They still could sign up again to get early ballots. And they could still go directly to the polls on Election Day, though that, by itself, would not count toward once again getting a ballot automatically by mail.
Attorney Rodney Ott, representing challengers, cited a study that shows that Black and Hispanic Americans are more likely to be "intermittent or rare voters compared to white voters'' and therefore more likely to lose out on those automatic early ballots. Ditto, he said, of people with lower income.
Using figures from the 2020 election, Ott said about 71% of all registered voters are white. But if this law had been in effect, they would have constituted just 54% of those removed from the permanent early voting list.
"By contrast, Latinos are 19% of registered voters, but would be 33% or removals,'' Ott wrote.
"Black Arizonans are 4% of registered voters but would be 5% of removals,'' he continued. "And Native Americans are 0.9% of registered voters but would be 1.3% of removals.''
But what also got Lanza's attention were comments made Kavanagh in an interview with CNN.
"Democrats value as many people voting, and they're willing to risk fraud,'' the veteran lawmaker told the news outlet. "Republicans are more concerned about fraud, so we don't mind putting security measure in that won't let everybody vote, but everybody shouldn't be voting.''
And there was more.
"Not everybody wants to vote, and if somebody is uninterested in voting, that probably means that they're totally uninformed on the issues,'' Kavanagh said. "Quantity is important, but we have to look at the quality of the votes, as well.''
In arguments defending the law, Assistant Attorney General Drew Ensign said even if Kavanagh's comments could be seen as showing racial intent -- a point Ensign is not conceding -- he said that is irrelevant.
"The question is not the purpose of Rep. Kavanagh but the purpose of the legislature as a whole,'' he wrote. And Ensign said the challengers offer "essentially nothing'' to prove that point.
But Lanza, in his tentative ruling, had other thoughts.
"Although Rep. Kavanagh first addressed voter fraud, he then transitioned, for unexplained reasons, into an argument for reducing the voting population based on the 'quality' of voters,'' the judge wrote.
"There may be innocent reasons for this segue that will be revealed during future stages of this case,'' Lanza said. But he said that the statement, coupled with the allegations of disparate effect of the law based on race, "as expressing the discriminatory trope that minorities are uneducated voters.''
The judge acknowledged that the statements of a single lawmaker, by itself, cannot be used to determine the motivations of the entire legislature. But he said that it would be "inappropriate'' to allow the state to get the challenge dismissed now based only on the claim that the legislature, as a whole, "was not imbued with racial motives.''
Lanza stressed that what he wrote is not the last word.
He said it will allow the lawyers who will appear before him on June 6 to "focus their arguments'' on the issues he finds relevant and give them an opportunity "to address any perceived errors in the court's logic.''
The judge found other faults with the Ensign's arguments the challenge to the law has no merits and needs to be dismissed.
For example, he said the state is claiming that the organizations have no standing to challenge the law, at least by themselves, and need to have individual voters as plaintiffs. Lanza said Ensign provides no case law to support that contention.
"Nor would such a rule make sense,'' the judge wrote.
"As alleged in the complaint, plaintiffs are organizations dedicated to serving the groups that are affected in disproportionate ways by the challenged legislation,'' Lanza said. And he said the groups themselves say they will be affected, having to divert resources normally devoted to things like organizing voter registration drives to instead help educate people what they have to do to keep getting those early ballots.
While Lanza is indicating that he's willing to allow a challenge to eliminating the permanent early voting list, he appears ready to quash a challenge by the same groups to a separate election law.
That statute spells out that people who forget to sign their early ballots must go to election offices personally by 7 p.m. on Election Day and sign them if they want their vote to be counted. Challengers said that's not fair, given that people who are notified that their signatures don't match have up to five days after the election to "cure'' the problem.
He said the Election Day deadline presents only a minimal burden on voters while extending the deadline would create an addition burden on election workers.
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