PHOENIX β Unless the U.S. Supreme Court intervenes, Arizonans won't face prison time for helping a neighbor or anyone else return an early ballot.
The 9th U.S. Circuit Court of Appeals on Friday blocked Arizona from enforcing a new law that makes it a felony to collect the ballots of anyone else and bring them to the polls. The law, adopted earlier this year by the Republican-controlled legislature, provides only narrow exceptions for family members, those in the same household and certain caregivers.
Friday's ruling does not mean HB 2023 is illegal. That will be hashed out through a full-blown trial, a process that could take months or longer.
But Chief Justice Sidney Thomas, writing for himself and five others on the 11-member panel, said he and his colleagues believe it is appropriate to prevent the law from taking effect for this election.
Thomas pointed out that "ballot harvesting'' was never considered illegal until this year. He said that weighed heavily on the decision of the majority to conclude there would be no real harm to the state in perhaps only delaying its implementation while its legality is decided by the courts.
"The injunction does not affect the state's election process or machinery,'' he wrote. "It simply would enjoin enforcement of a legislative act that would criminalize the collection, by persons other than the voters, of legitimately cast ballots.''
Judge Diarmuid O'Scannlain, writing a dissent on behalf of five of the 11 judges, called that argument "incomprehensible.''
"Of course HB 2023 directly regulates the state's election process or machinery: It governs the collection of ballots which obviously is integral to how an election is conducted,'' he wrote. "But under the majority's Orwellian logic, regulations affecting get-out-the-vote operations are somehow not regulations of the 'electoral process.' ''
And O'Scannlain called it "irrelevant and incorrect'' for the majority to say an injunction is appropriate because a violation of the new law could land someone in state prison for a year.
Friday's order may not be the last word.
Within hours, attorneys for the state and the Arizona Republican Party asked Supreme Court Justice Anthony Kennedy, who has purview over the 9th Circuit, to issue an emergency stay. They point out the law has been in effect since August, including during the primary and for most of the last three weeks of early voting.
"The 9th Circuit's eleventh-hour order enjoining the law at this point simply makes no sense and risks significant electoral confusion,'' they argued to Kennedy.
Arizona law allows all voters to request an early ballot. It can be mailed back or taken to a polling place.
Until now, there has been another option: Give the ballot to someone else. That has allowed both political parties, community groups and even special interests to go door-to-door β especially after it's too late to put a ballot in the mail β and ask people if their early ballot is sitting on a table and needs to be taken to the polls.
Groups aligned with Democrat interests have generally been more active with those efforts and more successful.
Earlier this year the Legislature, at the behest of Arizona Secretary of State Michele Reagan, a Republican, voted to make the practice a felony amid arguments that it created the opportunity for fraud. The Republican majority was undeterred by statements from Democrats that tampering with ballots or refusing to return them already is illegal and that there has never been a proven instance of fraud.
The state and federal Democratic parties along with the Clinton campaign and others sued, charging that the law is racially discriminatory. That allegation is crucial as the federal Voting Rights Act makes it illegal for states to enact laws or regulations that have a disproportionate impact on minorities.
Thomas, in the earlier three-judge ruling that upheld the law, said the evidence is there.
"The record demonstrated that, in many rural areas with a high proportion of minority voters, home mail delivery was not available, and it was extremely difficult to travel to a post office,'' he wrote.
Thomas also said that 14,000 registered voters on the 2.8 million acre Tohono O'odham reservation have no home mail delivery. He said a ban on allowing people to collect ballots from residents there clearly affects them.
But Judge Sandra Ikuta, who wrote the majority opinion for the three-judge panel, said there was "no evidence that these categories of voters were more likely to be minorities than non-minorities.''
She acknowledged that there are several rural communities which lack home delivery that are almost exclusively populated by minorities, places like San Luis and Somerton. But Ikuta said there also are lots of rural places with few minorities, places like Colorado City, Quartzsite, St. David and Wickenburg, which also lack home delivery and are equally affected by the ban.
"Similarly, while the record shows the Tohono O'odham Nation lacks home mail service (the plaintiff) does not point to evidence showing that HB 2023 has a disproportionate impact on members of the Tohono O'odham Nation compared to non-minorities who also live in rural communities,'' Ikuta wrote.
Both the majority of the 9th Circuit and the dissenting judges do agree that there is no evidence of fraud. Thomas said that undermines the arguments made by Republican lawmakers of why the new restriction is needed.
But O'Scannlain said none of that matters legally. He said the state's desire to prevent fraud before it happens is important enough.
"Arizona does not have to wait until it possesses such evidence before it acts,'' he wrote. "It may be proactive, rather than reactionary.''
