PHOENIX โ Unless the U.S. Supreme Court intervenes, Arizonans wonโt face the possibility of 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.
Fridayโs ruling does not mean HB 2023 is illegal. That will be hashed out through a 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 โballot-harvestingโ 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.
โThe injunction does not affect the stateโs election process or machinery,โ he wrote. โIt simply would enjoin enforcement of a legislative act that would criminalize the collection, by persons other than the voters, of legitimately cast ballots.โ
Judge Diarmuid OโScannlain, writing a dissent on behalf of five of the 11 judges, called that argument โincomprehensible.โ
โOf course HB 2023 directly regulates the stateโs election process or machinery: It governs the collection of ballots which obviously is integral to how an election is conducted,โ he wrote. โBut under the majorityโs Orwellian logic, regulations affecting get-out-the-vote operations are somehow not regulations of the โelectoral process.โโ
And OโScannlain called it โirrelevant and incorrectโ 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.
Fridayโs 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.
โThe 9th Circuitโs eleventh-hour order enjoining the law at this point simply makes no sense and risks significant electoral confusion,โ they argued to Kennedy.
Late Friday the high court gave those seeking to block the law until Saturday morning to file a response to the stateโs request.
Arizona law allows 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 to drop off. That has allowed political parties, community groups and even special interests to go door-to-door โ especially after itโs too late to put a ballot in the mail โ 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 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 there has never been a proven instance of fraud.
The state and federal Democratic parties, along with the Clinton campaign and others, sued, charging 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 an earlier three-judge ruling that upheld the law, said the evidence is there.
โThe 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,โ he wrote.
Thomas also said that 14,000 registered voters on the 2.8 million-acre Tohono Oโodham 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 โno evidence that these categories of voters were more likely to be minorities than non-minorities.โ
She acknowledged there are several rural communities that 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.
โSimilarly, while the record shows the Tohono Oโodham 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 Oโodham Nation compared to non-minorities who also live in rural communities,โ 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 OโScannlain said none of that matters legally. He said the stateโs desire to prevent fraud before it happens is important enough.
โArizona does not have to wait until it possesses such evidence before it acts,โ he wrote. โIt may be proactive, rather than reactionary.โ
