Group asks judge to declare ballot drop boxes illegal in Arizona

A group that backs additional restrictions on voting wants a judge to outlaw the use of “drop boxes’’ that can make it easier for some people to return their early ballots.

The Free Enterprise Club says Arizona law provides only certain ways a ballot can be submitted: personal delivery to county election offices, dropping them in the mail or returning them to any polling place.

But the Elections Procedures Manual, prepared by the Secretary of State’s Office, specifically permits counties to set up unmonitored drop boxes wherever they want and to allow “retrievers’’ to collect them for counting.

The manual has the force of law, acknowledged Tim La Sota, an attorney for the Free Enterprise Club. Violations of it are a criminal misdemeanor.

But he contends the manual cannot allow things, including drop boxes, that are not specifically authorized by the Legislature.

He is asking a Yavapai County judge to declare that provision of the manual illegal and bar elections officials across the state from using drop boxes.

The lawsuit is filed in Yavapai County because it is also brought in the name of a resident and registered voter of that county, Mary Kay Ruwette.

The choice of county may not be random. John Napper, the presiding judge of Yavapai County, ruled last month in another case, also filed by the Free Enterprise Club, that a different provision in the Elections Procedures Manual — about how officials can compare signatures on early ballots with other documents — apparently violates state law. There is no indication yet which judge will hear the new case.

‘A reasonable accommodation’

An aide to Secretary of State Adrian Fontes said the Free Enterprise Club is wrong on the legal facts.

State law requires the secretary of state to prescribe rules not only to achieve and maintain correctness, impartiality, uniformity and correctness, but also for collecting ballots, said Fontes’ aide Paul Smith-Leonard.

“The drop boxes are used by the county recorders to collect early ballots,’’ he said.

Beyond that, Smith-Leonard said drop boxes comply with the Americans with Disabilities Act “and provide a reasonable accommodation to voters with a disability.’’

La Sota said allowing unmonitored drop boxes creates potential for fraud.

He acknowledged that people legally can drop their ballots in mailboxes. That’s acceptable, La Sota said, because federal laws outlaw tampering with or destroying mail. He also said the U.S. Postal Service scans each piece of mail, creating a record.

Mailboxes are a less likely target than drop boxes for those who might seek to tamper, La Sota said.

“From the outside, it is impossible to determine whether a particular mailbox contains early voted ballots,’’ he wrote. “A person seeking to interfere with ballots being returned by mail would have very little certainty that a particular mailbox contains any ballots at all.’’

By contrast, La Sota said, a drop box has only completed ballots.

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“From the outside, one can know with certainty that the contents of a ballot drop-box are completed ballots, likely a significant number of them,’’ he said.

Voter intimidation issue

La Sota cited no instances of drop boxes being broken into or any other instance.

What has happened, he said, is voter intimidation.

Last year, groups got U.S. District Court Judge Michael Liburdi to issue a restraining order to block certain activities around drop boxes. Those included photographing or videotaping taking videos of voters depositing their ballots, posting any videos or personal information online suggesting these people were engaged in “ballot harvesting,’’ and requiring anyone openly carrying a weapon or wearing body armor to remain at least 250 feet from any drop box.

La Sota said there is no risk of voter intimidation at mail collection boxes “because it is nearly impossible to tell whether any particular person depositing mail is depositing a voted ballot.’’ And he said intimidation can’t happen when people return ballots to election offices because of the presence of government officials.

If those arguments don’t convince the judge who will hear the case, La Sota has another: arbitrary and disparate treatment of voters depending on where they live.

For instance, he said, La Paz County has just one drop box while there are 16 in Coconino County. There are just 19 in Yavapai County, La Sota said, despite the fact the county has 100,000 more residents than Coconino.

Adding to that, said La Sota, is the wide variety of places where counties have installed drop boxes.

In Coconino, those include a bookstore and a humane society, he said. Gila County has one at a church. Yavapai County has drop boxes at libraries, community centers, fire departments, “and, amazingly enough, United States Post Offices — presumably mere feet away from a mailbox where voters may legally return their ballots.’’

This isn’t the first foray into voting and election matters for the Free Enterprise Club.

It worked to have Republican lawmakers put a measure on the 2022 ballot to require voters using early ballots to not just sign them but include a birth date and a state-issued number or the last four digits of a Social Security number. Proposition 309 also would have imposed new identification requirements on those who show up at a polling location.

Voters rejected it with 51.8% in opposition.

The organization is also trying to void something voters did approve last year: Requiring public disclosure of the true source of funds spent to influence elections. Proposition 211, which passed by a margin of nearly 3-1, is designed to end the ability of donors to hide their identity by giving money to support or oppose candidates or ballot measures through other organizations.

A trial judge threw out the challenge in June, and the case is now on appeal.

The Free Enterprise Club did get the Arizona Supreme Court to rule that voters have no constitutional right to block lawmakers from cutting or eliminating taxes, a move that thwarted a 2022 bid to give Arizona voters the last word on $1.9 billion in tax cuts enacted by the Republican-controlled Legislature.