Court voids state ‘ballot harvesting’ ban, out-of-precinct voting rule

[File photo by Natasha Khan/Cronkite News]

By MacKinley Lutes-Adlhoch

WASHINGTON – A divided federal appeals court Monday overturned Arizona’s ban on ballot-harvesting and its policy of rejecting ballots accidentally cast in the wrong precinct, calling both reflections of the state’s “long and unhappy history of official discrimination” in elections.

The 239-page ruling by the full 9th U.S. Circuit Court of Appeals laid out in exacting detail the state’s history of election policies aimed at suppressing votes by black, Hispanic and Native American voters.

But in a pair of dissents, four judges on the court said the majority’s ruling was unsupported by facts and that plaintiffs in the case “simply failed to show that either policy” presented a discriminatory burden on minority voters.

Arizona Attorney General Mark Brnovich said Monday he will appeal the ruling to the Supreme Court.

“It’s surprising the 9th Circuit took the unusual step of overruling its own decision from 2018,” Brnovich, a Republican, said in a statement from his office. “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.”

But Arizona Secretary of State Katie Hobbs, a Democrat, called the decision “a victory for Arizona voters.”

“Voting is a right and a responsibility we share, and this decision prevents Arizonans from facing prosecution for simply helping a neighbor return their ballot,” Hobbs said in a statement.

Monday’s ruling is the latest in a tangled history for the case that was filed by state and national Democratic parties after Arizona lawmakers in 2016 passed HB 2023, a law that banned the practice of “ballot harvesting,” the practice of collecting and delivering mail-in ballots for others.

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The suit claimed that the law targeted minority voters, who were more likely to use ballot-harvesting services it than white voters because of distance to ballot drop-off centers, distance to a post office and unreliability of mail service in low-income or minority communities.

It also attacked the state’s policy for handling “out-of-precinct” ballots, or those cast in the wrong precinct. Minority voters are as much as two times as likely to cast an out-of-precinct ballot than white voters, the suit said.

But under state law, such a voter can cast a provisional ballot. If it is later determined that the voter was in the wrong precinct, the entire ballot is thrown out, even if some of the races – for federal or statewide office, for example – do not depend on precinct.

The case moved quickly through the courts in 2016, with the circuit court ruling a week before the presidential election that the ballot-harvesting ban should be put on hold. But the U.S. Supreme Court lifted that injunction just three days before Election Day, allowing the laws to take effect.

The case went back to federal district court, which upheld both laws in 2018. That decision was affirmed by a divided three-judge panel of the 9th Circuit.

But the full 9th Circuit Monday overturned both laws, saying they failed both the “results test” and the “intent test” of the Voting Rights Act, in that they had a discriminatory impact on minority voters and were passed with discriminatory intent. The majority ruling by Judge William Fletcher detailed a history of discrimination going back to territorial days.

“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,” Fletcher wrote.

That included literacy tests and voter intimidation in the past, but also modern challenges, including constant shifts in polling places. The opinion cited one judge who said the “paths to polling places in the Phoenix area (are) much like the changing stairways at Hogwarts, constantly moving and sending everyone to the wrong place.” Those changes are more likely to affect lower-income residents, Fletcher wrote.

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He also said that the ballot harvesting law was passed on “false and race-based allegations” of voter fraud that do not exist. Even if some lawmakers who voted for the ballot-harvesting ban had a sincere belief the law was needed, Fletcher wrote, it just means “well-meaning legislators were used as ‘cat’s paws’” by those with discriminatory intent.

In a dissent, Judge Diarmuid O’Scannlain said that the majority “draws factual inferences that the evidence cannot support and misreads precedent along the way,” striking down two duly-enacted state laws to enforce its voting system. Instead of looking at the lower court ruling for clear error, O’Scannlain said the majority “reweighed the same evidence considered by the district court to arrive at its own findings on appeal.”

In a separate dissent, Judge Jay Bybee said the challenged laws are appropriate “time, place and manner restrictions” on voting that states can set to protect the voting process.

Requests for comment from the Arizona Republican Party and GOP lawmakers were not immediately returned Monday. But an official with the Arizona Democratic Party called the ruling a confirmation that the laws were discriminatory.

“Arizonans should be able to drop off sealed ballots on behalf of others because a person’s vote should count even if they vote in the wrong precinct,” the spokesperson said.

Herschel Fink, executive director for the Arizona Democratic Party, said the ruling “takes an undue burden off of working families and people of color, making it easier for them to exercise their right to vote.”

“We are pleased that the latest effort to suppress the voices of voters by Republicans has failed,” he said.

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