PHOENIX — A new ruling upholding Arizona election laws comes as state lawmakers just changed one of the reasons the U.S. Supreme Court agreed to leave those statutes in place.
In concluding the ban on ballot harvesting does not violate the Voting Rights Act, the court cited how easy it is for Arizonans to cast early ballots, Justice Samuel Alito pointed out that, among other things,”any voters may ask to be sent an early ballot automatically in future elections.’’ And, at the time the case was argued at the court in March, that was true.
But that was before the Republican-controlled Legislature adopted SB 1485.
That law by Sen. Michelle Ugenti-Rita, R-Scottsdale, spells out that if someone does not return an early ballot in at least one of four prior elections — meaning a primary and a general election in two successive years — the person is dropped from what until now had been called the “permanent early voting list.’’
They still could sign up again to get early ballots. They also would have to be notified before being removed from the list.
And they could still go directly to the polls on Election Day.
But it would entail an additional hurdle.
Foes argued this would have a disparate negative impact on minority voters who may be less inclined to vote in every election but still want the option of getting that ballot for the years they are interested in casting an early ballot. That proved particularly true in 2020 with not just record turnout but also nearly 90% of the votes cast by early ballots.
All that raises two questions.
The first is whether the Supreme Court might have reached a different conclusion on the legality of the 2016 law against “ballot harvesting’’ had the justices known of the subsequent action of Arizona lawmakers. That, for the moment, remains an academic question.
Second is whether this new law fits within the guidelines laid out in the court’s Thursday ruling about what changes states can and cannot enact without running afoul of the federal Voting Rights Act.
During debate on SB 1485, proponents argued that having un-voted early ballots leads to the possibility that someone else could get hold of them and cast a fraudulent vote. Sen. Vince Leach, R-Tucson, said that in Pima County alone there were about 70,000 early ballots mailed out last election that were not returned.
But Sen. Kirsten Engel, D-Tucson, said there is no documented evidence of fraud due to early voting.
“That is completely made up,’’ she said.
That may be irrelevant. In their Thursday ruling, the justices said a state need not have evidence of fraud before enacting restrictions designed to protect election integrity.
There is, however, still the question of whether the law will have a disparate impact on people of color.
That was the argument of Sen. Martin Quezada, D-Glendale. He said that leads him to believe the measure was enacted due to “systemic racism.’’
Sen. Juan Mendez, D-Tempe, was also pointed in his criticism.
“It makes me think you don’t like who votes — or who has the potential to vote,’’ he said.
“This bill looks like nothing more than a ruse to disenfranchise voters that you don’t like,’’ Mendez continued. “You’re not trying to stop fraud. You’re trying to pick and choose who gets to vote conveniently.’’
But Attorney General Mark Brnovich, who defended the ballot harvesting law at the Supreme Court, said he believes SB 1485 is defensible.
“In and of itself, cleaning up early voting lists is not something that’s going to trigger the Voting Rights Act per se,’’ he told Capitol Media Services.
And Brnovich said he reads Thursday’s ruling as requiring anyone challenging a law to show “substantial impact’’ on the opportunity of minorities to participate in the political process.
Gov. Doug Ducey, in a video news release — he would not answer questions from reporters — defended his decision to sign the measure into law. He said opposition to SB 1485 was based on “deceptive and heated rhetoric being used by some partisan activists.’’
And Ducey pointed out that, even with the new law, no one loses the right to vote, only the automatic access to easy ballots if they don’t regularly use them.
