Originally Published: October 5, 2017 6 a.m.
PHOENIX — The Arizona Democratic Party went to federal court Tuesday in a bid to overturn a ban on “ballot harvesting” and ensure that ballots cast in the wrong precinct are counted anyway.
Attorney Bruce Spiva contends the Republican-controlled Legislature acted illegally last year in making it a felony for an individual to take anyone else’s early ballot to a polling place. Spiva said he will present evidence that the measure will cause undue harm to minorities and other groups.
But Sara Agne, attorney for the Arizona Republican Party, who is defending the law, will argue that lawmakers were entitled to put procedures in place designed to prevent fraud.
Spiva could have an uphill battle.
U.S. District Court Judge Douglas Rayes last year refused to stop the state from enforcing the law while its legal merits are being debated. He concluded there was no “quantitative evidence” to show minorities were more likely to be harmed than anyone else.
The full 9th U.S. Circuit Court of Appeals, which heard arguments last year in San Francisco, thought otherwise and agreed to enjoin enforcement. But that decision was stayed by the U.S. Supreme Court with the justices concluding they did not want to make such a radical change so close to last year’s election.
In the meantime, the appellate court sent the case back to Rayes to take a closer look. Rayes now has set aside 10 days to hear evidence.
The law criminalizes what had been a practice by civic and political groups of going out to see if people who had requested early ballots had remembered to return them by mail. If they had not, group members would offer to take it to the polling place themselves.
Now, such action could result in a presumptive one-year prison term and potential $150,000 fine.
There are exceptions. The law does not apply to family members, those living in the same household or certain caregivers who provide assistance to voters in various institutions.
The legislation is based on claims of fraud — or at least the potential for that.
Rep. Don Shooter, R-Yuma, a member of the Senate in 2016, said there are “a lot of shenanigans ... down in my neck of the woods.”
“I’ve been told the way they do it is they collect the ballots early, they put them in a microwave with a bowl of water, steam then open, take the ballots,” he said during debate.
“If they like the way it’s voted they put them back in,” Shooter continued. “If they don’t like the way it’s voted, they lose the ballot.”
But Shooter, who said he passed the tip on to state election officials, acknowledged nothing ever came of it.
Spiva told Capitol Media Services he intends to prove otherwise.
“There’s no evidence of fraud in the legislative record,” he said. “And there’s no evidence anywhere.”
But Republicans contend they do not need proof of actual fraud to justify the law. Agne said the statute is justified because it helps protect against election fraud.
“It’s in the state’s interest to have that chain of custody information,” she told the appellate court during last year’s hearing. “That’s one of the reasons the state has implemented this sensible election regulation.”
Agne also said a majority of other states have similar laws, though only a handful make it a felony like Arizona.
The lack of any actual evidence was not only an issue in court. It also came up when the measure was first debated in the House.
Rep. J.D. Mesnard, R-Chandler, who is now House speaker, said it is irrelevant whether there is fraud or not.
“What is indisputable is that many people believe it’s happening,” he said in voting for the measure. “And I think that matters.”
Spiva has one other argument. He said the evidence will show the Arizona law has a disproportionate impact on minorities, meaning it runs afoul of federal voting rights laws.
His other legal challenge is to a law that governor what happens when people show up at polling places on Election Day and their names are not on the list of those registered to vote there.
If the would-be voter is simply at the wrong place, poll workers can — but are not required to — direct them to where they need to go. Voters who insist they are registered and entitled to vote there are given a “provisional ballot.”
After other ballots are counted, county election officials go through their records to see if that person was entitled to vote at that place. If not, the ballot is not counted.
Spiva contends this law disproportionately affects minorities. So he wants Rayes to rule that counties must count any vote that the person was entitled to make had he or she gone to the proper polling place.
So, for example, a voter who should have been in Tempe but ended up in Glendale would not have votes counted for city elections or school boards. But under Spiva’s argument, that person’s vote would be counted for statewide offices like governor and U.S. senator.