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Early voting appears here to stay in Arizona

Victor Calderón/KAWC

By Howard Fischer
Capitol Media Services
PHOENIX -- Millions of Arizonans will not lose the right to vote early, at least not now if ever.
In a 5-page ruling Monday, Mohave County Superior Court Judge Lee Jantzen rejected claims by the Arizona Republican Party that lawmakers violated the state constitution in 1991 when they agreed to let anyone request the right to vote by mail.
Jantzen acknowledged that Alexander Kolodin, attorney for the GOP and party Chair Kelli Ward, presented examples of "bad actors'' violating laws deal with early voting. That included instances in Yuma County where a woman last week pleaded guilty to collecting the early ballots of others and, in some cases, marking how they should be voted.
"These example are concerning but they do not address the issue before the court: the constitutionality of the statutes in question,'' the judge wrote.
"Furthermore, they do not show a pattern of conduct so egregious as to undermine the entire system of no-excuse mail-in voting as provided by the Arizona Legislature,'' he continued. "Enforcement mechanisms exist within the statutes to punish those that do not abide by the statutes.''
Jantzen also pointed out that state and local election officials have been administering the system for more than 30 years.
"The laws are far from perfect and nobody anticipated 30 years ago that approximately 90% of Arizona voters would vote by mail during a pandemic,'' the judge wrote. In 2020 nearly 3 million Arizonans voted early.
"But these laws are NOT in violation of the Arizona Constitution,'' he said.
And Jantzen specifically rejected claims by Kolodin that the people who crafted the 1912 Arizona Constitution never intended for lawmakers to pass measures to allow widespread early voting.
"They are not inapposite of the framers of the constitution who emphasized the right to suffrage for Arizona citizens and that the voters' ballots be secret,'' he said. "The laws passed by the Arizona legislature in 1991 further those goals.''
Kolodin said it is "likely'' there will be an appeal. In fact, he told Capitol Media Services that Monday's ruling that early voting is constitutional is not really a surprise.
"What superior court judge wants to say otherwise and take that responsibility onto himself,'' he said. "I can't think of many judges who would.''
But Kolodin said he and state GOP officials will have to analyze the ruling "and make our determination'' before deciding what to do next.
Time is not on his side.
His lawsuit seeks to void no-excuse early voting for the Nov. 8 general election.
Such a ruling would require county election officials to set up dozens, if not hundreds, of new polling places. And county officials have said in prepared affidavits it would be near impossible to do that for this year.
The Arizona Constitution clearly gives lawmakers the power to decide voting methods.
Kolodin, however, pointed out it also says that "secrecy in voting shall be preserved.'' And he said that's not possible if ballots are mailed to millions of Arizonans, all of whom could be influenced or pressured to vote a certain way, perhaps by employers or union organizers looking over their shoulder while they fill them out.
Jantzen, however, wasn't buying it.
He pointed out that the first law allowing people to vote by mail was approved in 1918, just six years after the state constitution was adopted. It allowed some people who could not get to the polls, mostly those in the military, an opportunity to vote.
"These laws mandated the mail-in voter keep his ballot private,'' the judge said.
"So the legislature had the right to write election laws in 1918 that maintained secrecy,'' he continued. "And they did so.''
There were several interim measures to expand early voting, applying it to those who would be out of their voting precinct and those who were 65 and older. Then, in 1991, lawmakers approved the no-excuse mail-in voting, effective with the 1992 election.
Jantzen said that 1991 law, like earlier versions which Kolodin did not challenge, has procedural safeguards to prevent ballot tampering "and, more importantly, to the question before this court, to maintain secrecy in voting.''
For example, he said, state law requires ballot return envelopes be designed so they do not reveal the voter's selections or political party affiliation. It also requires they be "tamper evident when properly sealed.''
Another provision spells out how the early ballot has to be folded and put into the envelope to conceal the choices.
Potentially more significant, Jantzen was not impressed by Kolodin's argument that the only way people can vote early is if a county election official brings the ballot to someone's home, stands there while the person marks it, and then takes it back. Kolodin said that ensures the voter is not being pressured.
The judge, however, said the law spells out that early ballots can be "delivered or mailed to the county recorder or other officer in charge of elections'' or be brought by the voter to any polling place. And all that, he said, ensures that the 1991 law preserves the constitutional requirement for secrecy in voting.
Jantzen, in noting how long there has been no-excuse early voting, did not address claims by attorneys for Secretary of State Katie Hobbs that the GOP waited too long to challenge the practice.
But it is a matter of record that the lawsuit was filed only after the results of the 2020 election showed that while Republican Donald Trump outpolled Democrat Joe Biden among voters who went to the polling place on election day, Biden had an even larger edge among those who voted early.
The lawsuit isn't the only bid to kill early voting.
Legislation approved by the Senate Government Committee in March would accomplish the same thing, along with barring the use of machines to tally votes. But Senate President Karen Fann, R-Prescott, has so far shown no interest in advancing the measure, at least in part amid concerns about forcing individuals to stand in line to vote, especially during the August primary.
On Twitter: @azcapmedia

(From Friday, June 3, 2022)

By Howard Fischer
Capitol Media Services
PHOENIX -- The question of whether millions of Arizonans will lose the right to vote early could turn on whether a judge believes the practice violates anyone's right of a secret ballot.
At a hearing Friday, Alexander Kolodin argued that letting people vote from home means that others could see who they supported.
Kolodin, who represents the Arizona Republican Party, told Mohave County Superior Court Judge Lee Jantzen that violates constitutional requirements that says "secrecy in voting shall be preserved.'' And he said that at-home voting opens the door to people being pressured to vote a certain way or even to selling their votes.
Daniel Arellano, who represents the Arizona Democratic Party did not dispute that people who vote at home are free to share their choices with others, though it was pointed out that voter intimidation and vote-selling already are illegal. But Arellano told Jantzen there is a big flaw in Kolodin's bid to use the issue of privacy to have the 1991 law allowing no-excuse early voting.
"What they would have to allege and show is that early voting in every single instance would be unconstitutional because it would be impossible to vote early in private,'' he said.
"That simply not the case,'' Arellano said. "People regularly vote an early ballot in private all the time.''
Roopali Desai, representing Secretary of State Katie Hobbs, pointed out the state GOP is not claiming that the fact some people can vote early precludes its own members from voting in private. In fact, she noted, Kelli Ward, who chairs the party and is a plaintiff in the lawsuit, voted early in the 2020 election.
What's going on here, Desai told the judge, is just the reverse of protecting the right to vote.
"Their request is to make voting more difficult, to limit voting, to make it so less people have opportunity to vote,'' she said.
And there's one more thing.
"Nobody is forced to vote an early ballot,'' Arellano told the judge, as Arizona is not one of those states where all ballots have to be cast by mail. People remain free to go to the polls for whatever reason they want.
That now leaves the question to Jantzen of whether Arizonans who like to vote early -- there were close to 3 million of them in 2020 general election, about 88% of those who cast ballots -- will have that ability this November. He has promised a ruling on Monday.
Arizona has allowed some form of early voting for more than a century, encompassing everyone from those in the military and those not in the county on election day to people who are infirm or are at least 65 years old.
Republicans are not challenging those statutes. Instead, what the party wants repealed are laws that have been on the books since 1991 law that permit anyone to request an early ballot.
Voiding the law would do more than affect the vast majority of Arizonans who like voting by mail. There also are potential political implications.
In the 2020 race, President Trump outpolled Democrat Joe Biden by nearly 124,000 votes among those who went to the polls. But Biden gained almost 139,000 more votes among early voters than the incumbent.
During Friday's arguments, Kolodin did not address the popularity of the practice or how it might affect future voter turnout. He urged the judge to focus on what could go wrong.
"The fundamental thing about mail-in voting is it's virtually impossible to catch bad actors,'' he said.
That's the same assertion that continues to be made by many Republicans who insist that the 2020 election was "stolen'' from Trump, at least in part because of fraudulent early ballots.
Kolodin did cite one example for Jantzen, the criminal charges brought against Guillermina Fuentes, a former San Luis mayor, who agreed this past week to plead guilty to gathering and, in some cases, filling out the ballots of others during the August 2020 primary election.
But Arellano noted during the hearing that the GOP's legal bid to kill virtually all early voting contains no actual allegations of fraud in the practice.
Karen Hartman-Tellez, who represents 13 of the state's 15 counties, told Jantzen that before he decides whether to kill early voting he needs to consider the effects it would have, especially if his order were to apply to this hear's general election.
She said counties spend a year or more coming up with voting locations. If early voting is not an option, Hartman-Tellez said, then that means scrambling to find not just many more sites that have to meet the requirements of the Americans with Disabilities Act -- she thinks the need would multiply by a factor of six -- but also finding more poll workers and election equipment.
"Elections officials are fantasic problem solvers,'' she said.
"But they are not magicians,'' Hartman-Tellez continued. "They cannot conjure polling places or poll workers out of nothing.''
On Twitter: @azcapmedia