PHOENIX β The Arizona Republican Party is trying to kill early voting in the state, a method thatβs preferred for casting votes by more than 80% of state residents.
There is nothing in the state constitution to allow for early voting, legal papers filed Friday ask the Arizona Supreme Court to conclude.
The only form of voting specifically authorized by the framers of the constitution is in person and on Election Day, Attorney Alexander Kolodin told Capitol Media Services.
What that means, he said, is that anything else β including the current system of no-excuse early ballots created by the legislature in 1991 β is illegal.
If the justices do not buy that argument, Kolodin has an alternate legal theory. He argues that, at the very least, the state is required to return to the way the situation was before 1991. Thatβs when voters could get early ballots, but only if they provided some proof they needed it, like being away from their voting precinct on Election Day or a physical disability.
And Kolodin said that, at least, would provide more security over early ballots than the current system.
Secretary of State Katie Hobbs, a Democrat, who is named as defendant in the lawsuit, called the move a βridiculous attempt to undermine our elections.β
βThis lawsuit filed by the Republican Party of Arizona has a single aim: to make it more difficult to vote,β Hobbs, who is running for governor, said in a prepared statement.
An aide to Attorney General Mark Brnovich, a Republican candidate for U.S. Senate who is legally obligated to defend constitutional challenges to state laws, said he is reviewing the lawsuit.
And a press aide to Gov. Doug Ducey, the top elected Republican in Arizona, declined to comment on the effort by the GOP to quash the early voting system. But Ducey has signed prior moves to curb the process, including making it a crime to bring another personβs early ballot to the polls unless itβs a family member, and allowing counties to stop sending early ballots to people who do not regularly use them.
The move comes amid extensive debate in the Legislature about early voting and whether it provides opportunities for fraud.
Some Republican lawmakers have proposed repealing early voting statutes entirely.
This approach is in line with arguments by former President Donald Trump who, in the wake of his 2020 loss in Arizona and elsewhere, has argued that Election Day should be one day only, with early voting allowed only for those who have a legitimate reason.
But that has not found favor among sufficient members of the GOP to pass muster given the popularity among voters from both major parties as well as the independents who make up about a third of registered voters.
Instead, Republican legislators here have coalesced around a plan to impose new restrictions beyond the sole existing requirement to sign the exterior of the envelope with the idea that county election officials compare the signatures with those on file. The plan, set for a final roll-call vote, would oblige early voters to provide a date of birth and information from another government document such as a Social Security card or an Arizona driverβs license.
The legality of early voting is not the only issue addressed in the lawsuit.
Kolodin, the attorney for the GOP Partyβs lawsuit, also contends that if early voting is legal β a point he disputes β that still does not permit the use of βdrop boxesβ for early ballots, something Hobbs has permitted in the Election Procedures Manual.
State law provides for only only two ways for early voters to transmit ballots for tabulation: delivering or mailing βto the county recorder or other officer in charge of electionsβ or depositing βat any polling place in the county,β he says.
βA drop box is not an office of the county recorder, nor is it a βpolling place,ββ he is telling the justices. And Kolodin said none of this is helped by laws that allow county supervisors to authorize βvoting centers.β
βDrop boxes are also not voting centers β which, like polling places, are staffed so that a voter may present identification βto receive the appropriate ballot for that voter on election day,ββ he said. By contrast, Kolodin said, drop boxes are not staffed.
Even assuming that the Arizona Constitution allows the legislature to authorize drop boxes, Kolodin said, lawmakers have never enacted such a statute.
βThus, the secretary exceeds her legal authority by prescribing drop-box rules,β he said.
Separately, Kolodin said Hobbs is violating the law by not setting up uniform rules for counties to use when verifying the signatures on early ballot envelopes.
But it is the effort to quash early voting that has the potential to forever change how elections are run in the state.
Kolodin cites several constitutional provisions he said back up his contention.
For example, he told the justices, the section about the right of voters to create their own laws or second-guess those approved by the legislature requires the secretary of state to put them on the ballot βin such a manner that the electors may express at the pollsβ their approval or disapproval.
βThe ordinary meaning of βpollsβ is one of the places where the votes are cast at an election,β Kolodin said.
βMail-in voting does not occur at a specific place designated by county boards (of supervisors) or a place with sufficient number of voting booths,β he said. βBecause no-excuse mail-in voting is not exercised at the polls, it is unconstitutional.β
And Kolodin said thereβs a good reason the Arizona Constitution requires people to cast their votes at polling places, alone, and in secret.
βMail-in ballots, by their very nature, cannot be made entirely secret or free from coercion,β he said. βIf bad actors wish to pay for votes or coerce electors to vote a certain way, there is nothing to stop them from standing over electors as they complete their ballots.β
Kolodin acknowledged that taking his case directly to the Arizona Supreme Court is unusual. Virtually all lawsuits, including challenges to election laws, normally go to a trial judge to hear evidence.
But this case, he said, has no facts in dispute and simply deals with a matter of constitutional interpretation.
Potentially more significant, Kolodin said, whoever loses at the trial court would appeal, meaning the issue would wind up before the stateβs high court β eventually. Going directly to the Supreme Court expedites a ruling, one that could come before this yearβs elections.
Kolodin is not working from a blank slate.
In January, a state court in Pennsylvania struck down that stateβs law, first enacted in 2019, which allows for no-excuse early voting.
Judge Mary Hannah Leavitt, a Republican, writing for the majority in the 3-2 ruling, said that voting βrequires the physical presence of the elector.β And she said the legislature cannot change voting laws without first amending the state constitution.
That case, cited by Kolodin in his legal arguments here, is on appeal to the Pennsylvania Supreme Court.
And just last week Jane Brady, chair of the Delaware Republican Party, filed a similar lawsuit there claiming there is no basis in that stateβs constitution for early voting.
Photos: 2020 General Election in Pima County and Arizona
Ballot processing in Pima County
UpdatedBallot processing in Pima County
UpdatedBallot processing in Pima County
UpdatedBallot processing in Pima County
UpdatedBallot processing in PIma County
UpdatedBallot processing in PIma County
UpdatedBallot processing in PIma County
UpdatedBallot processing in PIma County
UpdatedBallot processing, Pima County
UpdatedBallot processing, Pima County
UpdatedBallot processing, Pima County
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedElection 2020 Senate Kelly
UpdatedElection 2020 Senate Kelly
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedElection 2020 Arizona Voting
UpdatedElection 2020 Arizona Voting
UpdatedElection 2020 Arizona Voting
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedElection 2020 Arizona Voting
UpdatedElection 2020 Arizona Voting
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedElection 2020 Arizona Voting
UpdatedElection 2020 Arizona Voting
UpdatedElection 2020 Arizona Voting
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedElection 2020 Arizona Voting
UpdatedElection 2020 Arizona Voting
UpdatedElection 2020 Arizona Voting
UpdatedElection 2020 Arizona Voting
UpdatedElection 2020 Arizona Voting
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedElection Day, Pima County and Arizona, 2020
UpdatedJudge throws out lawsuit, finds no fraud or misconduct in Arizona election
UpdatedPHOENIX β A judge tossed out a bid by the head of the Arizona Republican Party to void the election results that awarded the stateβs 11 electoral votes to Democrat Joe Biden.
The two days of testimony produced in the case brought by GOP Chairwoman Kelli Ward produced no evidence of fraud or misconduct in how the vote was conducted in Maricopa County, said Maricopa County Superior Court Judge Randall Warner in his Friday ruling.
Warner acknowledged that there were some human errors made when ballots that could not be read by machines due to marks or other problems were duplicated by hand.
But he said that a random sample of those duplicated ballots showed an accuracy rate of 99.45%.
Warner said there was no evidence that the error rate, even if extrapolated to all the 27,869 duplicated ballots, would change the fact that Biden beat President Trump.
The judge also threw out charges that there were illegal votes based on claims that the signatures on the envelopes containing early ballots were not properly compared with those already on file.
He pointed out that a forensic document examiner hired by Wardβs attorney reviewed 100 of those envelopes.
And at best, Warner said, that examiner found six signatures to be βinconclusive,β meaning she could not testify that they were a match to the signature on file.
But the judge said this witness found no signs of forgery.
Finally, Warner said, there was no evidence that the vote count was erroneous. So he issued an order confirming the Arizona election, which Biden won with a 10,457-vote edge over Trump.
Federal court case remains to be heard
Fridayβs ruling, however, is not the last word.
Ward, in anticipation of the case going against her, already had announced she plans to seek review by the Arizona Supreme Court.
And a separate lawsuit is playing out in federal court, which includes some of the same claims made here along with allegations of fraud and conspiracy.
That case, set for a hearing Tuesday, also seeks to void the results of the presidential contest.
It includes allegations that the Dominion Software voting equipment used by Maricopa County is unreliable and was programmed to register more votes for Biden than he actually got.
Legislative leaders call for audit but not to change election results
Along the same lines, Senate President Karen Fann and House Speaker Rusty Bowers on Friday called for an independent audit of the software and equipment used by Maricopa County in the just-completed election.
βThere have been questions,β Fann said.
But she told Capitol Media Services it is not their intent to use whatever is found to overturn the results of the Nov. 3 election.
In fact, she said nothing in the Republican legislative leadersβ request for the inquiry alleges there are any βirregularitiesβ in the way the election was conducted.
βAt the very least, the confidence in our electoral system has been shaken because of a lot of claims and allegations,β Fann said. βSo our No. 1 goal is to restore the confidence of our voters.β
Bowers specifically rejected calls by the Trump legal team that the Legislature come into session to void the election results, which were formally certified on Monday.
βThe rule of law forbids us to do that,β he said.
In fact, Bowers pointed out, it was the Republican-controlled Legislature that enacted a law three years ago specifically requiring the stateβs electors βto cast their votes for the candidates who received the most votes in the official statewide canvass.β
He said that was done because Hillary Clinton had won the popular vote nationwide in 2016 and some lawmakers feared that electors would refuse to cast the stateβs 11 electoral votes for Trump, who won Arizonaβs race that year.
βAs a conservative Republican, I donβt like the results of the presidential election,β Bowers said in a prepared statement. βBut I cannot and will not entertain a suggestion that we violate current law to change the outcome of a certified election.β
Photos of the 2020 General Election voting, election night and ballot processing in Pima County, Maricopa County and throughout Arizona.