Tuesday night brought yet another change to Arizona’s election process when the Ninth Circuit Court of Appeals in San Francisco set a Thursday voter registration deadline, overruling an earlier order by a federal judge in Phoenix which extended the state’s registration deadline from Oct. 5 to Oct. 23.
The new deadline for now is midnight Oct. 15, according to the appellate ruling. But it too can be appealed, this time to the U.S. Supreme Court, making it still uncertain what the voter registration cutoff date will be for Arizona’s upcoming Nov. 3 general election.
The Ninth Circuit’s Oct. 13 ruling came shortly after Secretary of State Katie Hobbs reached an agreement with Mi Familia Vota and Arizona Coalition for Change, the two non-profit groups which sued her earlier this month seeking to extend the statutory Oct. 5 registration deadline due to COVID-19 impacts on their First Amendment “rights to associate and engage in free speech to register voters and get out the vote.”
The agreement called for an Oct. 16 deadline instead of the Oct. 23 deadline previously imposed by U.S. District Judge Steven Logan over the objections of Hobbs, who was represented at the time by lawyers with the Arizona Attorney General’s Office.
Hobbs, a Democrat, initially announced she would not challenge Logan’s order but a few days later she joined in an appeal initiated by the Republican National Committee and the National Republican Senatorial Committee. Court records show Hobbs had received pushback from many of the state’s 15 elected county recorders.
Her delay in appealing also created issues for Arizona Attorney General Mark Brnovich, who contended Hobbs had no authority to bind the state or the county recorders to any adjustment of state election law even though she’s the state’s top elections official.
The attorney general then ceased to represent Hobbs, who obtained private counsel at taxpayers’ expense. Brnovich’s office has continued to vigorously defend the Oct. 5 deadline, which is set by state law as 29 days prior to the Nov. 3 general election.
The agreement announced by Hobbs Tuesday with the help of a federal court mediator also asked the court of appeals rule that anyone who registered to vote between Oct. 5 and the new deadline date could not have their vote challenged simply on the basis of when they registered.
Brnovich’s office and the Republican committees informed the Ninth Circuit that they objected to the agreement, with attorneys for the committees holding to their position that the federal judge in Phoenix improperly extended the Oct. 5 registration deadline which has been set in Arizona Revised Statute since 1990.
Meanwhile, Brnovich reminded the federal appeals court that under Arizona law he is empowered with the authority to represent the state “in any action in federal court.” His office agreed to not insist on enforcement of the Oct. 5 deadline but wanted registration to stop as soon as possible for the general election.
In the end the Ninth Circuit agreed to sign a stay order, or a hold, of Logan’s Oct. 23 deadline. The new order signed Oct. 13 is a prospective stay with a two day grace period, meaning anyone who registered between Oct. 6 and Oct. 15 can cast a ballot in the general election.
Unless of course the U.S. Supreme Court reviews the case and issues a contradictory order.
The Ninth Circuit ruling, however, was not unanimous. Judge Jay S. Bybee agreed that Logan’s order extending the deadline to Oct. 23 needed to be put on hold. However, he believed the only proper remedy was for the state to enforce its Oct. 5 statutory deadline.
And that is the issue most likely to be appealed by Brnovich or the two Republican committees.