9th Circuit Strikes Down Arizona's 'Ballot Harvesting' Ban

By Lauren Gilger, Steve Goldstein
Howard Fischer, Capitol Media Services
Published: Monday, January 27, 2020 - 1:34pm
Updated: Tuesday, January 28, 2020 - 11:47am
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Howard Fischer/Capitol Media Services
State Sen. Michell Ugenti-Rita

Arizona's law making it a crime to return someone else's early ballot is illegal, the 9th U.S. Circuit Court of Appeals ruled Monday.

In a divided decision, the majority concluded that the Republican-controlled Legislature enacted the restriction in 2016 with the goal of suppressing minority votes. And Justice William Fletcher, writing for the majority, said the record shows that HB 2023 had that effect.

The court also voided a separate provision which says that the entire ballot is discarded if someone votes in the wrong precinct on election day. The judges said the state should count the votes that would have been legal had the person been at the right place, such as for a statewide office like governor.

Monday's ruling drew an angry reaction from Sen. Michelle Ugenti-Rita (R-Scottsdale) who pushed the legislation through the process.

"Bull hockey,'' she said when informed of the ruling. "They're just a liberal court.''

And Ugenti-Rita said it was never her motivation to suppress minority votes — votes that are more likely to go to Democrats.

She also dismissed as irrelevant the court's findings that there was no real evidence that allowing individuals to collect the ballots of others ever resulted in fraud.

"Do I need a bunch of people to fall off a balcony before I'm like, 'You know what's a good idea? We should probably put up a railing,''' Ugenti-Rita said. "Or does logic and common-sense prevail (and) tells me it's not good practice?''

She was not alone. Four of the 11 justices that heard the case filed separate dissents saying they found nothing illegal about the policies.

Ugenti-Rita is now hoping for U.S. Supreme Court review.

In a statement, Arizona Attorney General Mark Brnovich said, "I have a duty to defend the law. Our office will appeal to the Supreme Court and continue to protect the integrity of our elections.”

What’s behind “ballot harvesting” is the fact that most Arizonans receive early ballots. They can be filled out and mailed back or delivered to polling places on election day. But the law requires mailed ballots to be delivered by election day. So anything dropped in a mailbox within a week or so may not get counted.

Political and civic groups had for years gone into neighborhoods, asking people if they have returned their ballots and, if not, offering to take it to polling places on their behalf.

The law does have exceptions for family members, those living in the same household, and caregivers for those in nursing homes and similar facilities.

Republicans argued that presents too many opportunities for mischief, though during debate they could not cite a single confirmed incident where a ballot was altered or did not get delivered. In fact, Sen. J.D. Mesnard, then a Republican members of the House from Chandler, argued it’s irrelevant whether there is fraud or not.

“What is indisputable is that many people believe it’s happening,” he said at the time. “And I think that matters.”

After the law was enacted it was challenged by the Arizona Democratic Party, the Democratic National Campaign Committee and the Democratic Senatorial Campaign Committee.

Fletcher, in writing for the majority, said the change in law cannot be examined solely in a vacuum.

"For over a century, Arizona has repeatedly targeted its American Indian, Hispanic, and African-American citizens, limiting or eliminating their ability to vote and to participate in the political process,'' he said.

Fletcher cited extensive testimony at trial about the number of ballots collected and turned in by others. More significant, he said the record from the trial shows that prior to the 2016 law minorities were more likely than non-minorities to get someone else to turn in their ballots.

"The district court found that, in contrast, the Republican Party has not significantly engaged in ballot collection as a Get Out the Vote strategy,'' Fletcher wrote.

"The base of the Republican Party in Arizona is white,'' he continued. "Individuals who engaged in ballot collection in past elections observed that voters in predominantly white areas were not as interested in ballot-collection services.''

And there are other factors.

For example, Fletcher wrote, white registered voters have home mail services at a rate over 350 percent higher than their American Indian counterparts.

Ugenti-Rita sniffed at any suggestion that minorities who seek an early ballot have a harder time voting them than others.

"How could it be inconvenient to return your ballot when you've elected to receive it that way?'' she asked. "That literally defies logic.''

But Fletcher, in his ruling, did not see it that way.

"In urban areas of heavily Hispanic counties, many apartment buildings lack outgoing mail services,'' he wrote, meaning they can get the blank ballot without leaving the building but would have to go somewhere else to return it.

And Fletcher said there was some testimony that incoming and outgoing mail often go missing, saying that "especially in low-income communities, frequent mail theft had led to distrust in the mail service.''

"The adverse impact on minority communities is substantial,'' the judge wrote. "Without access to reliable and secure mail services and without reliable transportation, many minority voters prefer instead to give their ballots to a volunteer.''

The majority judges also found something else to buttress their findings that the legislation was racially motivated.

Fletcher cited an early version of the measure introduced in 2011 by then-Sen. Don Shooter, R-Yuma. And he pointed out that the trial judge specifically found that Shooter was "in part motivated by a desire to eliminate what had become an effective Democratic GOTV strategy.''

The trial judge then noted that Shooter had won his 2010 election with just 53% of the vote — receiving 83% of the non-minority vote but only 20% of the Hispanic vote.

The GOP-controlled Legislature eventually adopted the current law in 2016. But Fletcher said that, in the opinion of the trial judge, nothing had really changed.

"Republican legislators were motivated by the unfounded and often far-fetched allegations of ballot collect fraud made by former Sen. Shooter,'' Fletcher said.

Ugenti-Rita said there is a record of the problems elsewhere caused by ballot harvesting. In North Carolina there was an investigation launched amid allegations that Republicans there illegally collected the ballots of minority voters and then purposely failed to turn them in.

But Fletcher pointed out that what had occurred there would have been illegal even under pre-2016 Arizona laws which already made it a crime to tamper with or refuse to deliver an early ballot.

"Criminalization of the collection of another person's ballot was enacted with discriminatory intent,'' Fletcher wrote, a direct violation of not just the U.S. Constitution but also the Voting Rights Act. And he said that any distrust of third-party ballot collection that currently exists is "because of the fraudulent campaign mounted by proponents of HB 2023.''

"To the degree that there has been any fraud, it has been the false and race-based claims of the proponents of HB 2023,'' the judge said. "It would be perverse if those proponents, who used false statements and race-based innuendo to create distrust, could now use that very distrust to further their aims in this litigation.''

On the issue of out-of-precinct voting, Fletcher wrote that there are multiple reasons people show up at the wrong location. One, he said, involves frequent changes in polling locations.

In Maricopa County, for example, at least 43% of polling locations changed between 2006 and 2008, with 40% of them changing between 2010 and 2012. And the judge said that there were fewer changes in where white people vote.

Fletcher also said that Arizona has a high percentage of renters which leads to a high percent of people changing address who then have to find a new polling place, even if they moved only a short distance away. And he said there are findings that people voting at the wrong location is more frequent in districts populated with renters, groups he said, which "are disproportionately composed of minorities.''

KJZZ's The Show spoke to Ugenti-Rita and to Joel Edman, executive director of the Arizona Advocacy Network, one of the groups that celebrated the 9th Circuit’s ruling.

EDITOR's NOTE: This story was updated to include a statement from Arizona Attorney General Brnovich.

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