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Wed, Nov. 13

9th Circuit to mull ballot harvesting ruling, state law

PHOENIX – Federal judges will give Democrats one more chance to make their case that a state ban on “ballot harvesting’’ is illegal.

In a brief order Wednesday, the 9th U.S. Circuit Court of Appeals said a majority of the sitting judges want to review last week’s ruling by a majority of a three-judge panel that concluded the state is legally to make it a felony for anyone to take someone else’s ballot to the polling place. HB 2023, approved earlier this year by the Republican-controlled legislature, has exceptions only for family members, those in the same household and certain caregivers.

Judge Sandra Ikuta, writing last week’s majority opinion, said the state has a legitimate interest in protecting the integrity of the voting process. And she said the fact there isn’t a single instance of fraud from the practice is legally irrelevant.

That 2-1 ruling left Chief Justice Sidney Thomas, to dissent, saying there is evidence that the practice the state law bans is more heavily used by minorities, making it illegally discriminatory.

Wednesday’s order essentially wipes out last week’s ruling against the challengers, giving them another shot at convincing the full court that the ban violates the federal Voting Rights Act. But time is running out: The election is Tuesday.

Wednesday’s decision to review last week’s earlier ruling was not unanimous, with Judge Diarmuid O’Scannlain calling the move “a serious mistake.’’

“We risk creating a mess of current law by trying to produce a ruling under self-imposed time pressure,’’ he wrote for himself and four other judges.

He said it would be better to allow Tuesday’s election to take place with the ban on ballot harvesting in place. O’Scannlain said that would allow courts to see how the law is implemented, see whether it is discriminatory, and then make a ruling on its legality ahead of the next election.

The action comes as arguments are scheduled for today in Phoenix on claims by Democrats that the Arizona Republican Party, the Trump campaign and their allies are planning to intimidate voters going to the polls on Tuesday. That would include people who otherwise might have given their early ballots to someone else but now have to deliver them personally.

The Democrats want U.S. District Court Judge John Tucci to issue a restraining order to block things like “aggressive questioning’’ of those coming to vote.

Meanwhile, another federal judge in Phoenix is weighing a bid by Democrats to ensure that those who registered to vote on Oct. 11 should be allowed to cast a ballot this year. Secretary of State Michele Reagan wants the court to enforce the Oct. 10 deadline even though that was both a federal and state holiday and some options to register to vote on that day were not available.

And a ruling is awaited from the same three-judge panel of the 9th Circuit that decided the ballot harvesting case, this time on the question of whether the state should be required to count the votes of ballots cast at the wrong precinct.

Unlike many other states, Arizona allows all voters to request that a ballot be mailed to them ahead of each election. Voters can fill it out and mail it back, take it to an early voting site ahead of Election Day or take it to any polling place on Election Day.

The other option until this year was to give it to someone else to return.

Both Republicans and Democrats have done such “ballot harvesting’’ in prior years. But the Democrats and allied groups have been far more successful at going door-to-door close to Election Day and collecting the ballots that may be sitting on a table that are now too late to be mailed.

There already are laws that make it a crime to tamper with ballots.

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