Arizona Republicans seek to eliminate all early voting
By Howard Fischer
Capitol Media Services
PHOENIX -- Secretary of State Katie Hobbs says the latest bid by the Arizona Republican Party to kill all early voting for this year's election not only comes too late but would cause chaos in the counties that would have to set up more polling places.
In court filings Wednesday, attorney Roopali Desai, who represents Hobbs, said the party and its chair, Kelli Ward, have known for decades that Arizona allows anyone to vote early. In fact, Desai said, the legislature has permitted some form of early voting since 1918.
Yet they are seeking an order from Mohave County Superior Court Judge Lee Jantzen to disallow no-excuse early voting, if not for the Aug. 2 primary, an election where early ballots actually go out on July 6, then certainly for the Nov. 8 general election.
But Desai also told the judge that the challenge by Ward and the GOP, who have been trafficking in unproven claims of massive fraud in early ballots, actually has a more sinister purpose.
"Their claims are part of a broader ongoing effort to sow doubt about our electoral process to justify infringing voting rights,'' she said, noting that early and mail-in ballots made up nearly 90% of the votes cast in the 2020 general election. "Even though plaintiffs' claims are legally baseless, they threaten our democracy.''
The lawsuit by Ward and the state GOP contends that the Arizona Constitution requires that ballots be cast in person, and only on Election Day.
Much of that claim is based on language which says that "secrecy in voting shall be preserved.'' Attorney Anthony Kolodin says that can't happen when people have their ballots at home where they can be influenced by others, ranging from employers to unions, who pressure people to vote a certain way. But he said someone casting a ballot in a voting booth, alone, can't be coerced.
In April, the Arizona Supreme Court tossed his bid to kill all forms of early voting, saying he needs to make his case to a trial judge. Kolodin followed through on May 17 with the claim in Mohave County.
He also scaled back the lawsuit and is no longer asking to quash all forms of early voting. Now he wants to void only the 1991 law that extends the privilege to all, without having to offer an excuse like being out of the county, physically disabled or being at least 65 years old.
Desai said this new version has no more merit.
It starts with what she calls a last-minute bid to upset procedures on the eve of an election.
Consider, Desai said, the situation in Maricopa County where election officials already have determined the number of voting centers needed based on the premise that the vast majority of people will vote early.
"If the county were enjoined from using early voting in 2022 elections, it would be forced to try to accommodate over a million more in-person voters on election day that it didn't budget or plan for,'' she told the judge. And Desai said even if the county could make the changes, doing so at this point "would cause mass voter confusion.''
Beyond that, she said even if mail-in voting has the potential for less secrecy than in-person voting, that is no basis for a court to interpret the Arizona Constitution as prohibiting early voting -- and no basis to believe as voters are at greater risk of coercion or vote-buying, the latter of which is a felony.
"Not only is this rank speculation, but it also ignores the many safeguards built into Arizona's early voting system,'' Desai said.
For example, she said, the law requires envelopes that voters use to return their ballots to conceal the contents and be tamper-evident when sealed. Desai also said election officials are required to removed voted ballots from the envelopes -- which do have voter identification -- without unfolding or reviewing them.
"And interpreting the 'secrecy' provision in the constitution to restrict access to voting would undermine a fundamental right; one that constitutes the essence of American democracy,'' she wrote.
Desai also said there's a bit of Arizona history that Ward and the GOP are ignoring in their claim that the constitution does not allow early voting.
She pointed out that the first early-voting bill was approved in 1918, allowing active military personnel to vote through registered mail in war or peace time.
Of note, Desai said, is that four senators who voted for the bill actually were delegates to the state constitutional convention eight years earlier. The measure was signed into law by Gov. George W.P. Hunt who was president of that convention.
And subsequent expansion of the ability of people to vote by mail also were supported by convention delegates and signed by Hunt, including one that covers people absent from the county on election day and those who had a physical disability.
"For over 100 years, our state preserved Arizonans' fundamental right to vote by offering some form of early voting,'' Desai wrote, saying the practice has proven "extremely popular.''
"Indeed, most of plaintiff Arizona Republican Party's voters vote early, including plaintiff Ward, who voted early as recently as 2020.''
Desai also had some more technical legal arguments for Jantzen on why Ward and the GOP lack legal standing to even challenge the law in the first place.
She said Ward claims she has the right to sue "as a taxpayer since Arizona's no-excuse mail-in voting system requires the unlawful use of taxpayer funds.'' Desai said, however, that's not the way the law works in Arizona.
"To have standing under a 'taxpayer' standing theory, a taxpayer must be able to demonstrate a direct expenditure of funds that were generated through taxation, an increased levy of a tax, or a pecuniary loss attributable to the challenged transaction,'' she told the judge. But the lawsuit, Desai said, challenges not any specific use of tax dollars but only the provisions of election law allowing for early voting.
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