Struck-down ballot-harvesting ban should still apply in presidential vote, AG says

PHOENIX — Arizona’a attorney general is asking a federal appeals court to allow the state to continue enforcing the “ballot harvesting” law just found unconstitutional.

In new legal filings Friday, Republican Attorney General Mark Brnovich told the judges that changing the rules now could have a confusing effect. He said early ballots for the March 17 presidential preference primary start going out Saturday, Feb. 1, for overseas voters, with the rest to be mailed on Feb. 19.

“Once ballots are received, voters can begin voting,” he told the 9th Circuit Court of Appeals. A majority of judges on that panel found the law unconstitutional on Monday.

Brnovich said that, based on the appellate court ruling, those ballots “are subject to being harvested,” which is the term used for turning in someone else’s early ballot for counting.

He wants the judges to agree not to enforce their ruling while he takes the case to the U.S. Supreme Court.

It will be just Brnovich who files that appeal.

Democratic Secretary of State Katie Hobbs, the state’s chief elections officer and a defendant in the original lawsuit, said she won’t be joining Brnovich in his bid to have the 9th Circuit ruling reviewed or overturned.

Potentially more significant, an aide said Hobbs believes that the 2016 law making the practice illegal was enacted with a “discriminatory intent.”

“That’s one of the reasons she voted against the bill when she was in the Legislature,” said Hobbs’ aide Murphy Hebert.

That statement could undermine Brnovich’s efforts to get the high court to overturn the 9th Circuit ruling.

In declaring the law unconstitutional, the 9th Circuit panel declared that “criminalization of the collection of another person’s ballot was enacted with discriminatory intent.” That violates the Voting Rights Act, wrote Judge William Fletcher.

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The law at issue is linked to the ability of Arizonans to seek “early” ballots, which can be filled out at home and then either mailed in or delivered to polling places on or before Election Day.

The requirement for ballots to be in the hands of election officials by 7 p.m. on Election Day means that anyone who has not mailed his or hers off at least a week ahead of time, depending on where in the state the item is mailed, is in danger of not having the vote count. That has led to political and civic groups going to homes and offering to hand deliver those ballots not yet mailed in.

The 2016 law makes that practice a felony unless the person doing the collecting is a family member, living in the same household, or a caregiver. Supporters said that limits the potential for fraud.

Fletcher, writing the majority opinion, found the law had “substantial” impact on minority communities by denying them the right to give their ballots to a volunteer. The judges also concluded there was racial motivation in the decision to enact the law by the Republican-controlled Legislature. The court also noted there was no actual evidence of fraud in Arizona.

Brnovich, in his new filing, does not dispute that. But he instead cited what happened in the 2018 congressional race in North Carolina where the Board of Elections found “overwhelming evidence” of a coordinated and illegal campaign by the Republican contender and his supporters to collect and then refuse to deliver absentee ballots to be counted.

That shows what can go wrong, Brnovich said.

“Fraudulent ballot harvesting thus can — and probably has — left hundreds of thousands of voters disenfranchised,” he said in the new filing.

“Preventing such harms is of paramount importance to the State of Arizona (and all other states),” the brief reads, saying the court’s majority opinion “denies Arizona the power to protect its citizens from the harms that voters in North Carolina suffered.”

Fletcher’s opinion does note what happened in North Carolina. But the judge pointed out that what occurred there — the refusal to deliver collected ballots — already was illegal under Arizona law before 2016.

Brnovich pointed out that the 9th Circuit opinion says that the North Carolina fraud “was perpetrated by a Republican political operative.” At the same time, Brnovich said, the majority said that ballot harvesting in Arizona was primarily conducted by Democrats.

“The Supreme Court could easily disagree with the majority’s apparent view that the only potential risk of ballot harvesting fraud arises from Republicans and not Democrats,” Brnovich wrote.