In Arizona, voters can request an early ballot to be sent to them before the election
Democrats in the state argue thousands have relied upon having their ballot collected by organizers
Arizona Democrats will ask a federal appeals court on Monday to put on hold a state law that criminalizes the practice of ballot collection, arguing that the law could disenfranchise thousands of voters – particularly in minority communities – that rely upon neighbors and activists to collect and hand deliver early ballots.
Last month a federal judge declined to enjoin the law for now ruling that the challengers had not shown that it would “disparately impact” minority voters.
“Deference to the judgments made by Arizona’s elected representatives in exercising their constitutionally prescribed authority to regulate elections is, therefore, required,” Judge Douglas L. Rayes of the the US District Court for the District of Arizona said.
But in an unusual order, the 9th Circuit Court of Appeals on Friday agreed to hear an expedited appeal with briefs due from both sides by close of business Monday. The court has scheduled oral arguments for October 19.
“This litigation is a good example of the clash between Republican elective operatives who say they are trying to root out voter fraud and Democratic leaning activists who are trying to open access to the ballot as much as possible,” said election law expert Joshua A. Douglas at the University of Kentucky College of Law.
In Arizona, voters can request an early ballot to be sent to them before the election. The voters can then mail it back or drop it off at a polling locations as long as it is received by 7 p.m. on Election Day.
Democrats in the state argue that thousands – particularly those in towns near the border and in native American reservations without reliable mail service – have relied upon having their ballot collected by organizers in past years to ensure the ballots are received on time.
“Over the years, many voters have adopted the practice of dropping off their ballots at local Democratic Party offices, which may be closer than their polling place, so that their ballots could be turned in by party officials, staff or volunteers,” said Spencer G. Scharff, voter protection director at the Arizona Democratic Party.
“This practice, which H.B. 2023 criminalizes, is especially prevalent in communities that have experienced state-sanctioned discrimination and thus prefer to entrust party officials to ensure that their ballots are counted,” he said.
Arizona Republicans passed a law in March of 2016, banning the practice.
The law makes it a felony, punishable by a year in jail and $150,000 to knowingly collect “voted or unvoted early ballots” from another person. It provides for an exception for family members or caregivers.
In briefs, lawyers for the Arizona Democratic Party point to the fact that some county election officials have told the media that they will be unable to implement the law in time for the next election, but the challengers argue that Republican Party activists will use the law as an “excuse to interrogate, follow and otherwise harass voters who appear at polling locations to drop off multiple ballots.”
In a brief filed by the Arizona Republican Party and joined by the Arizona attorney general, lawyers call the law a “well-reasoned” safeguard to a “fair and transparent election.”
They argue that the challengers “have not and cannot meet their burden to overcome the important regulatory interests protecting voters and ensuring an orderly and fair election process.”
They say the law was in effect for the primary election and that the challengers could not identify “a single voter whose ability to vote was burdened by the law. “
“Indeed, even after the primary election and as the district court noted, plaintiffs have not identified a single voter whose ability to vote was burdened by H.B. 2023,” they said.
Douglas says that ballot collection is an attempt by election workers to find alternative means to allow as many people as possible the chance to vote.
“Early, voting, accompanied by ballot collection is one way to make voting more convenient,” he said.