PHOENIX β Arizonaβa attorney general is asking a federal appeals court to allow the state to continue enforcing the βballot harvestingβ 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.
βOnce ballots are received, voters can begin voting,β 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 βare subject to being harvested,β which is the term used for turning in someone elseβs 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 stateβs chief elections officer and a defendant in the original lawsuit, said she wonβt 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 βdiscriminatory intent.β
βThatβs one of the reasons she voted against the bill when she was in the Legislature,β said Hobbsβ aide Murphy Hebert.
That statement could undermine Brnovichβs efforts to get the high court to overturn the 9th Circuit ruling.
In declaring the law unconstitutional, the 9th Circuit panel declared that βcriminalization of the collection of another personβs ballot was enacted with discriminatory intent.β That violates the Voting Rights Act, wrote Judge William Fletcher.
The law at issue is linked to the ability of Arizonans to seek βearlyβ 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 βsubstantialβ 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 βoverwhelming evidenceβ 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.
βFraudulent ballot harvesting thus can β and probably has β left hundreds of thousands of voters disenfranchised,β he said in the new filing.
βPreventing such harms is of paramount importance to the State of Arizona (and all other states),β the brief reads, saying the courtβs majority opinion βdenies Arizona the power to protect its citizens from the harms that voters in North Carolina suffered.β
Fletcherβs opinion does note what happened in North Carolina. But the judge pointed out that what occurred there β the refusal to deliver collected ballots β already was illegal under Arizona law before 2016.
Brnovich pointed out that the 9th Circuit opinion says that the North Carolina fraud βwas perpetrated by a Republican political operative.β At the same time, Brnovich said, the majority said that ballot harvesting in Arizona was primarily conducted by Democrats.
βThe Supreme Court could easily disagree with the majorityβs apparent view that the only potential risk of ballot harvesting fraud arises from Republicans and not Democrats,β Brnovich wrote.