By Howard Fischer
Capitol Media Services
PHOENIX -- Two appellate judges on Monday questioned whether it was legal for a trial judge to give Arizonans an extra 2 1/2 weeks to register to vote.
At a telephonic hearing, Judge Jay Bybee said the state has done nothing to specifically make it more difficult for Mi Familia Vota and the Arizona Coalition for Change to sign people up. Instead, he said, it was simply the result of the COVID-19 outbreak and restrictions on travel and gatherings imposed by Gov. Doug Ducey.
Judge William Fletcher expressed similar concerns.
"There is, or was, a statutory deadline (of Oct. 5) which, absent COVID, was perfectly valid,'' he said. "And I'm not sure that the presence of COVID makes it invalid.''
Even Judge Marsha Berzon, who seemed sympathetic, had her own concerns about the order by U.S. District Court Judge Steven Logan scrapping the deadline.
But even if the judges of the 9th Circuit Court of Appeals void Logan's order and its new Oct. 23 deadline, that doesn't end the matter.
The judges still need to decide on a plea by Secretary of State Katie Hobbs that even if they overtur the order they should provide a few more days to gather up the registrations that have been occurring since, perhaps through this coming Friday.
And Hobbs wants the appellate court to say that anyone who relied on Logan's order and registered in the interim still gets to vote this election, even if the judges ultimately conclude that Logan was legally wrong in voiding the statutory Oct. 5 registration deadline.
Monday's hearing came as Hobbs reversed course and decided to ask the appellate judges to overturn Logan.
Roopali Desai, her attorney, said Hobbs always opposed scrapping the Oct. 5 deadline because it could cause chaos so close to the Nov. 3 election. But Desai said Hobbs did not initially appeal for fear it would cause more confusion than simply leaving the order from Logan extending the deadline in place.
Now, with the case already appealed by others, that's no longer the case.
The decision by Hobbs to change her position and now seek to void Logan's ruling did not come entirely in a vacuum.
Hobbs' initial decision not to appeal put her at odds with 10 of the state's 15 county recorders from both parties, the people who actually have to process the new registrations. They joined with Gov. Doug Ducey and legislative leaders with their own legal filing asking the appellate judges to reverse Logan's order.
"Voting in Arizona already has begun,'' wrote attorney Brett Johnson, pointing out that early ballots went out last Wednesday. "County recorders had already shifted resources from registration functions to election activities.''
And Johnson pointed out that recorders were never included in the lawsuit which named only Hobbs as defendant. Yet he said they are the ones who actually are responsible for collecting, verifying and maintaining voter registration applications.
Now, without a chance to defend the Oct. 5 registration deadline, Johnson said, they now have to receive, review, verify and follow up on voter-registration applications, something he said "cannot be accomplished this close to the election without creating questions about the authenticity of those registrations.''
But attorney Matthew Brinckerhoff told the appellate judges Monday they should leave Logan's order in place.
Brinckerhoff, who represents Mi Familia Vota and the Arizona Coalition for Change, said the only reason the issue arose is because the COVID-19 outbreak and restrictions on travel and group activities imposed by Gov. Doug Ducey prevented these groups from going out and signing people up to vote.
"An event occurred of extreme and unpredictable circumstance and it had this profound impact on everyone's lives,'' he said.
"This is just one of them,'' Brinckerhoff told the court. More to the point, he said this is the kind of situation where a court can step in and make things right, saying it would be a "travesty'' to disenfranchise people of the right to vote.
That argument did not convince appellate Judge Jay Bybee.
He pointed out that the problems in signing people up were not due to any specific action aimed at the two groups. Instead, the judge said, these were simply overall restrictions.
More to the point, Bybee said there is no evidence that group members still could not approach people and get them to sign up, Ducey's orders notwithstanding. So he's not sure there was any legal justification for Logan to scrap the Oct. 5 deadline.
Johnson, in his pleadings -- he did not get to speak at Monday's hearing -- also took his own swat at the challengers for blaming Ducey's orders for their inability to get people registered.
"This is incorrect,'' he wrote. "The executive orders expressly protected the exercise of constitutional rights'' which he said includes registering people to vote.
If the appellate judges void Logan's order, that still leaves the question of what happens to the people who signed up after Oct. 5, the day Logan voided the deadline.
Brinckerhoff said their registrations should remain valid, saying Logan's order was "widely known.''
"I don't think it's an accident there were 15,000 registrations made the day after the injunction was granted,'' he told the court.
He said about 15,000 people submitted the forms in the first day after Logan's order. And Desai said she's not sure it would be possible to separate out those registrations received after the original Oct. 5 deadline.
There appears to be little opposition to letting those who signed up since Oct. 5 vote in the general election, especially as some already may have cast early ballots.
Less clear is how quickly an order from the appellate court overturning Logan's ruling -- assuming the judges make that decision -- would take effect.
Attorney Kory Langhofer, representing the Republican National Committee and the National Republican Senatorial Committee, urged the judges to stop new registrations immediately. He said anyone who had not signed up at whatever hour the order becomes effective would just be out of luck as far as voting this year.
Brinckerhoff, however, said if the judges decide to overturn Logan's ruling, they should do it "in the least disruptive way possible.''
The judges did not say when they will rule.
But Fletcher also said he's hoping the court can avoid the whole issue. He told the attorneys they should try to find some sort of a compromise -- and quickly -- about when new registrations for the Nov. 3 election should be cut off.
