PHOENIX — The state’s top election official is urging the state Supreme Court to reject a bid by the Arizona Republican Party to kill all early voting.
Court filings Friday on behalf of Democratic Secretary of State Katie Hobbs said the GOP’s lawsuit attacking the legality of the long-held practice is “cherry-picked words and phrases from various parts of the Constitution.”
Hobbs’ attorney. Roopali Desai, said the Republican lawsuit, filed late last month, ignores the clear intent of the Constitution’s framers to leave the details of how people vote up to the Legislature.
Desai told the justices there is something sinister in the bid by the party and one of its members to end a century of absentee voting and more than three decades of no-excuse early voting.
“Their claims are part of a broader ongoing effort to sow doubt about our electoral process to justify infringing voting rights,” she said.
Even as the case is pending, Republican lawmakers are moving to impose new restrictions on early voting.
“Even though petitioners’ claims are legally baseless, they threaten our democracy,” Desai said.
And, if nothing else, she said there’s another reason for the court to send the GOP packing on the challenge to early voting and also on various other claims the Election Procedures Manual, or EPM, isn’t being followed.
“Petitioners waited until the 2022 election cycle was underway — and less than five months before the Aug. 2, 2022, primary election — to challenge the secretary’s EPM and Arizona’s entire early voting system,” Desai said.
“Petitioners waited until the eleventh hour and now ask the court for ‘speedy and final resolution’ before ‘the upcoming Arizona general election,’” she said. “The court should not overlook that petitioners’ claimed ‘emergency’ is entirely of their own making.”
In a separate filing, Republican Attorney General Mark Brnovich also urged the justices to refuse to take the case, but for purely legal matters. He contends the Supreme Court cannot hear cases against the state that go directly to the justices.
But Brnovich took no position on the claim by his party that early voting is illegal.
The heart of the case is the claim that the only form of voting specifically authorized in the Arizona Constitution is in person and on Election Day. The GOP lawsuit says that means anything else — including the current system of no-excuse early ballots created by the Legislature in 1991 — is illegal.
To buttress that argument, GOP attorney Alexander Kolodin cited provisions in the constitution dealing with ballot measures. They say they’re put on the ballot “in such a manner that the electors may express at the polls” their approval or disapproval.
“The ordinary meaning of ‘polls’ is one of the places where the votes are cast at an election,” Kolodin contends.
Desai, however, called that a “tortured interpretation of the Arizona Constitution.”
She said there is only one section of the Constitution that deals with the method of voting. And it says “all elections by the people shall be by ballot, or by such other method as may be prescribed by law, provided that secrecy in voting shall be preserved.”
“This language is clear,” Desai wrote. “It ensures the right to a secret ballot but leaves the precise methods of voting to the legislature.”
And the Legislature, she said, has decided it is within its powers.
She noted that lawmakers adopted mail-in voting statutes just years after the Constitution was adopted. In subsequent years, legislators agreed to permit early voting by those who were ill or would be out of their precinct on Election Day.
And in 1991 the Legislature approved the current system that allows anyone to request an early ballot without having to provide an excuse.
The GOP lawsuit also contends that early voting, by its nature, is not secret because it permits “bad actors” to pay for votes or coerce voters and then stand over them as they complete their ballots.
Desai said that interpretation is not borne out, citing rulings on similar secrecy requirements in other states.
For example, the California Supreme Court concluded the secrecy provision in that state’s constitution, similar to the one in Arizona, “was never intended to preclude reasonable measures to facilitate and increase exercise of the right to vote such as absentee and mail ballot voting.”
Desai said the Arizona laws on early voting have detailed procedures to ensure secrecy, including return envelopes that do not reveal a voter’s selection or party affiliation, as well as providing “tamper evidence when properly sealed.”
She called the claim of voter coercion and vote-buying “rank speculation.”
Finally, Desai noted, the right to secrecy belongs to the voter, and can be waived if the voter chooses to share the choices with others.
“Just as any Arizona voter may choose to vote in-person or by mail, any Arizona voter — whether they vote in-person or by mail — always has the choice to waive the secrecy of their vote,” she wrote.
Desai also disputed claims that Arizona law requires Hobbs, through the Election Procedures Manual, to adopt specific procedures for verifying signatures on mail-in ballots.
“No statute directs the secretary to adopt a specific procedure for signature verification,” she wrote. And Desai rejected the claim that Hobbs exceeded her authority by adopting security procedures for ballot drop boxes.
“Arizona law allows counties to designate where votes can ‘deliver’ their voted early ballots, and many counties have been using ballot drop boxes for years,” she wrote. “The secretary not doubt had the power to adopt drop-box procedures on the collection and storage of early ballots.”
Both Hobbs and Brnovich are running in the election, Hobbs as a Democrat for governor and Brnovich as a Republican for U.S. Senate.
