Arizona voting rights groups can contest 2021 law that eliminates state's permanent early voting list
By Howard Fischer
Capitol Media Services
PHOENIX -- Voting rights groups can contest a 2021 Arizona law that eliminates the state's permanent early voting list.
In a 60-page ruling, U.S. District Court Judge Dominic Lanza said challengers had presented enough information to show that the measure violates the federal Voting Rights Act. That ranges from the fact that minorities are more likely to be affected by the law to historical patterns of discrimination and even a statement by a Fountain Hills Republican lawmaker which the judge said could be seen as proof the legislature approved the change for a racially discriminatory purpose.
None of this means that Mi Familia Vota and others will succeed in overturning the statute. But it does guarantee they will get their day in court.
SB 1485, the 2021 law Lanza is allowing to be challenged, 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.
Proponents argued it is wasteful to continue to send out early ballots to people who, by virtue of their voting record, have shown little interest in regularly using them.
Lanza said the state claims that the cost of mailing each early ballot is $2 to $3. If the permanent early voting list is eliminated, the savings from printing and mailing could be $450,000 for every election cycle.
Challengers don't dispute that the law would save money but argue it's irrelevant to the question of the effect on minority voters.
Part of that, the judge said, is that Black and Hispanic Americans are more likely to be intermittent voters, as are low-income Americans.
Evidence presented by challengers say the result of the legislation is that while while white Arizonans account for 71% for all registered voters, they will be just 54% of those removed. Conversely, 33% of all removals will be among Hispanics compared with the fact they are 19% of registered voters.
But the judge said that's only part of the issue.
"A legislature acts in violation of the 14th and 15th amendments when a discriminatory purpose is a motivating factor in the legislature's action,'' he said. The first deals with equal protection; the second bars racial discrimination in voting.
And Lanza said there are reasons to question the motives behind the law.
The judge recited a litany of the what he said is a history of racial discrimination, such as the state mandating English-only education in public schools as early as 1919 and banning bilingual education in 2020. He also cited segregation practices in Phoenix after World War II in housing, theaters, swimming pools, parks and restaurants.
There also are differences in not only poverty and education levels based on race in Arizona but also home ownership and even how long people live. And Lanza said that, historically, minorities have been less likely to vote.
What also got the judge's attention was the high turnout in the 2020 election.
"And turnout increased most notably in areas heavily populated by people of color,'' Lanza wrote. And in several South Phoenix precincts, home to large numbers of Black and Latino residents, turnout was up by 10%; precincts on Native American reservations went up 12% to 13%.
But after the 2020 election -- the one won by Joe Biden for president and Mark Kelly for Senate -- the judge noted there were many bills introduced nationally to make it harder to register, remain on the voter rolls or cast a ballot. One of them was SB 1485, the change to the permanent early voting list.
And then there was the interview that Rep. John Kavanagh, R-Fountain Hills, gave to 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.''
But 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.''
That got the judge's attention.
"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,'' Lanza noted.
"There may be innocent reasons for this segue that will be revealed during future stages of the case,'' the judge continued. But he said that the latter part of the the statement could be construed "as expressing the discriminatory trope that minorities are uneducated voters.''
And that, Lanza said, has to be combined with other allegations suggesting it was well know that SB 1485 would disproportionately affect minorities.
The judge acknowledged that, as a matter of law, one statement by one lawmaker cannot be used to impute discriminatory purpose of the entire legislature. But Lanza said that, at this stage of the case, neither can he dismiss it.
Lanza also said he has to take into account claims that there was no legitimate evidence that suggested the need for an audit of the 2020 election and the hiring of Cyber Ninjas by the Senate, a firm with "no experience in auditing elections.'' And that change in procedures, he said, also could be taken into account that "some invidious motive was at work.''
The judge was not so impressed, however, by arguments that Arizona acted illegally in saying that people who forget to sign their early ballots have to fix it by 7 p.m. on Election Day if they want their votes counted.
He said even if minorities are more likely to be tripped up by this requirement, the burden is so minimal as to not be illegal. So the judge threw out that claim.
No date has been set for a trial.
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