PHOENIX — Federal appellate judges on Wednesday questioned assertions by attorneys for the state and its Republican Party allies that a new law outlawing “ballot harvesting” does not target minorities.
Assistant Attorney General Karen Hartman-Tellez argued that the law, approved earlier this year, is a legitimate — and legal — effort by the Republican-controlled legislature to ensure the integrity of elections.
She conceded that making it a felony to collect the ballots of others might result in some inconvenience. But Hartman-Tellez said there was no proof that minorities would be harder hit.
Judge Sidney Thomas said that ignores evidence that 14,000 people living on the 2.8 million acre Tohono O’odham reservation have no postal service.
“That’s a significant barrier that’s different from the barrier that white citizens would have in Phoenix,” he said.
“There’s no comparative white group,” Thomas continued. “There’s no white reservation.”
The judge also noted a similar situation in the largely Hispanic border community of San Luis.
Hartman-Tellez said there are white-majority rural communities that also lack household mail delivery. But even if that were not the case, she told the three-judge panel that none of that is enough to void the law that took effect in August.
“There isn’t a single declaration, anything, from a person who says, ‘I’m going to not be able to vote now that this law is in effect,’ or that ‘It’s going to be much more difficult for me to vote,’ ” she argued.
The law makes it a felony, punishable by a year in state prison, to “collect” the voted or unvoted ballot of another. The only exceptions are for relatives, members of the same household and certain caregivers.
That question of how the law affects on minorities is important because the lawsuit filed by the Arizona Democratic Party and its allies relies on a provision of the federal Voting Rights Act making it illegal to enact changes in election laws that have a disparate effect on the rights of minorities.
Hartman-Tellez pointed out that U.S. District Court Judge Douglas Rayes, in refusing last month to stop the state from enforcing the law, concluded there was no “quantitative evidence” to show minorities were more likely to be harmed than anyone else.
But appellate Judge Sandra Ikuta said there’s a small problem with what Rayes ruled. She said there’s nothing in the law that requires challenges to offer up such hard data.
Thomas said that leaves courts to weigh what evidence it does have.
He said in this case that includes sworn affidavits that allowing others to collect their ballots is mostly used by Latinos and Native Americans. There also are similar statements from legislators representing affected areas.
“And I don’t see anything on the other side of the coin that it’s heavily used by anybody else,” Thomas said.
Sara Agne, representing the Arizona Republican Party which intervened to defend the law, told the appellate judges it is justified because it helps protect against election fraud.
“It’s in the state’s interest to have that chain of custody information,” she said. “That’s one of the reasons the state has implemented this sensible election regulation.”
Agne said a majority of other states have similar laws, though only a handful make it a felony like Arizona.
Bruce Spiva, representing the Arizona Democratic Party and its allies, told the judges that fear of fraud is not enough to impose this kind of burden.
“This law might disenfranchise thousands of people on the one hand,” he argued. “On the other hand, not one single instance of fraud has been shown.”
Spiva also told the court they need to consider “Arizona’s lengthy and infamous history of discrimination among its minority citizens.”
The appellate judges could rule within days. That is because early voting already has started in Arizona and, along with it, the restriction on who can return someone else’s ballot.
Challengers to the law also raised another issue in their legal papers.
They pointed out that election officials throughout the state have said they have no intention of trying to enforce the law.
“We’re not police,” Pima County Elections Director Brad Nelson told Capitol Media Services when the law took effect.
And Maricopa County Recorder Helen Purcell said her staffers will process ballots as they’re brought in, whether one at a time or with one person having multiples.
In their legal papers, challengers say the result is that the Arizona Republican Party “is training poll watchers to use it to interrogate and intimidate voters” who may have to show up in person to drop off their early ballots.
Agne, in her own legal brief, told the appellate judges to ignore that claim.
“To be categorically and unequivocally clear, the (Republican) Party does not use, implement, or permit its member or volunteers to use or implement any harassment or ‘voter intimidation tactics,’” she wrote.
