Federal court says Arizona 'ballot harvesting' law discriminates against minority voters

Arizona violated the Voting Rights Act by barring voters from delivering the early ballots of neighbors, friends and others to polling places, a federal appeals court ruled Monday.

The policy against so-called "ballot harvesting" disproportionately affects American Indian, Hispanic and African American voters, a majority of the 9th U.S. Circuit Court of Appeals said.

Republicans who control the Legislature enacted the policy with the intent of suppressing turnout among voters from minority groups, the court decided.

And in a victory for Democrats, who challenged the 2016 law, the court also said the state's policy of discarding the provisional ballots of voters who turn up at the wrong precinct is illegal, too.

The court was divided in its ruling, with four judges on the 11-judge panel dissenting. Attorney General Mark Brnovich said he will appeal to the U.S. Supreme Court as Arizona approaches what is bound to be a hard-fought election in which the outcomes of major races could hinge on a few thousand votes.

The court addressed two policies in a sprawling 113-page decision.

Perhaps the most well-known of those policies stems from a 2016 law sponsored by then-Rep. Michelle Ugenti-Rita, R-Scottsdale, which banned voters from turning in the early ballots of other voters, except for family members.

The court said uncontested evidence showed a large and disproportionate number of Hispanic and American Indian voters relied on others to collect and deliver their early mail ballots.

American Indian and Hispanic communities frequently face problems with mail service that make it difficult to turn in mail ballots on time, the court said. In urban areas, apartment buildings might not have outgoing mail service and residents may not regard their mailboxes as safe. Only 18% of American Indian voters have home mail service, the court said, adding that a lack of transportation compounds the problem.

In turn, organizers regularly collected ballots from voters and delivered the ballots to election officials.

Republican lawmakers argued the practice could allow for fraud and pushed the legislation to end it, eventually enacting House Bill 2023.

Court: 'Contrived' rationale for bill

But a majority of the court dismissed those allegations — and the bill itself — as racially motivated.

"The history of HB 2023 shows that its proponents had other aims in mind than combating fraud. HB 2023 does not forbid fraudulent third-party ballot collection. It forbids non-fraudulent third-party ballot collection," wrote Judge William A. Fletcher, who was appointed by President Bill Clinton.

"To borrow an understated phrase, the anti-fraud rationale advanced in support of HB 2023 'seems to have been contrived.'"

In a dissent, Judge Diarmuid O'Scannlain argued that mail ballot fraud is not hypothetical, pointing to the case of a Republican operative who used absentee ballot collection to swing a congressional race in North Carolina in recent years.

"The states have long had the power to fashion the rules by which its citizens vote for their national, state, and local officials," wrote O'Scannlain, who was appointed by President Ronald Reagan.

"Once we consider that 'totality of the circumstances' must take account of longheld, widely adopted measures, we must conclude that Arizona’s time, place, and manner rules are well within our American democratic-republican tradition."

Ugenti-Rita: Discrimination claim 'unfounded'

Ugenti-Rita, now a member of the state Senate, called any suggestion that the law was intended to discriminate "completely and utterly unfounded."

"As someone who has been part of the legislative process from the start of this bill, I can speak directly to the course of this bill and have never come across any bias," she said. "This is how you protect the integrity of the electoral process."

The other policy in Monday's decision involves counties where voters are only allowed to cast ballots at the polling places assigned to their precincts.

A voter can still cast a provisional ballot if they are not on a polling place's registry. But if election officials later determine the voter was in the wrong precinct, the ballot is discarded in its entirety, even if they are otherwise eligible to vote.

The court noted that these voters are sometimes eligible to participate but are at the wrong polling place. That is, the voter may have turned up at the precinct adjacent to their own. Even when the voter is further afield and ineligible to vote in some local races, they may still have been eligible to vote for president and U.S. Senate.

Voters could go to the wrong polling place for a number of reasons, the court noted, citing frequent changes in locations and officials opening polling places at confusing spots, such as on the edge of precincts.

The court said Arizona consistently discards more provisional ballots than other states.

How the lawsuit came to be

The Democratic National Committee filed suit in 2016 against the law and was joined by the state Democratic Party as well as the Democratic Senatorial Campaign Committee.

The state defended its policies and a district court judge sided with Arizona after a trial in 2018. Democratic groups appealed, leading to the 9th Circuit's decision.

The majority sent the case back to district court for further proceedings.

Democrats cheered the ruling as protecting the right to vote, particularly for Arizonans who — as detailed at length in the court's opinion — have long faced efforts by the state to suppress their participation in elections.

"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," Secretary of State Katie Hobbs said.

Contact Andrew Oxford at andrew.oxford@arizonarepublic.com or on Twitter at @andrewboxford.