Originally Published: September 12, 2018 3:12 p.m.
PHOENIX — Calling the lack of evidence of fraud irrelevant, a divided federal appeals court on Wednesday upheld Arizona's ban on "ballot harvesting.''
In a 2-1 ruling, the judges acknowledged arguments by the state and national Democratic parties that the Republican-controlled Legislature adopted the HB 2023, the 2016 law, without any proof that anyone who was collecting ballots had, in fact, tampered with them. And the majority noted there are other state laws, which have, for years, made it illegal to tamper with ballots.
But Judge Sandra Ikuta, writing for the majority, said none of that is required for lawmakers to do what they did.
"A state need not show specific local evidence of fraud in order to justify preventive measures,'' she wrote for herself and Judge Carlos Bea. She said courts are entitled to uphold such laws if they serve the state's interest in maintaining public confidence in the integrity of the electoral process, "even in the absence of any evidence that the public's confidence has been undermined.''
Ikuta also said there was no evidence that the Republican lawmakers who approved the plan acted with the intent of discriminating against minorities.
She did say there was reason to believe that the change was approved, at least in part, by "partisan considerations.'' But Ikuta said that fact does not make the law unconstitutional.
In the same ruling, the majority upheld another election practice which says that if people show up at the wrong polling place, their votes won't be counted, even those for which a person would otherwise be entitled to vote had they been in the right place.
For example, a voter who should have been in Tempe but ended up in Glendale would not have votes counted for school board. But the Democrats argued that person's votes for statewide and county offices should count.
Ikuta said these rules impose only minimal burdens and do not disenfranchise voters.
But appellate Judge Sidney Thomas said his colleagues are ignoring the evidence presented.
"Arizona's policy of wholly discarding -- rather than partially counting -- votes cast out-of-precinct has a disproportionate effect on racial and ethnic minority groups,'' he wrote, unconstitutionally burdening the right to vote.
And Thomas said the data produced by Democrats on the ban on ballot harvesting, complete with penalties of a year in prison and a $150,000 fine, "serves no purpose aside from making voting more difficult, and keeping more African American, Hispanic, and Native American voters from the polls than white voters.''
He pointed to claims by Sen. Don Shooter, R-Yuma, that ballot collectors steam open envelopes and decide whether to submit them based on what was inside. Even Rayes found that "demonstrably false,'' with the trial judge saying Shooer's views were "implicitly informed by racial biases.''
"And if Sen. Shooter was insincere, he purposely distorted facts in (order) to prevent Hispanics -- who generally preferred his opponent -- from voting,'' Thomas said.
And then there was a soundless video produced by A.J. LaFaro, who was chairman of the Maricopa County Republican Party, which Thomas said showed nothing illegal but was accompanied by a voice-over from LaFaro saying the man was acting to stuff the ballot box.
Wednesday's ruling is unlikely to be the last word on the issue.
The split decision in this case virtually guarantees that the Democrats will ask the full 9th Circuit to look at the issue.
And early next month, the same three-judge panel of the appellate court will consider a separate challenge to the ballot harvesting law by Democratic activist Rivko Knox.
She contends the state law is preempted by federal statutes, which specifically allow for any individual to deliver mail as long as it is done for free. And Knox said that once early ballots are in their envelopes they are mail.
That argument was rejected by U.S. District Court Judge Douglas Rayes, the same judge who threw out the challenge to the law by Democrats in this case.
What's behind "ballot harvesting'' is the fact that most Arizonans receive early ballots. They can be filled out and mailed back or delivered to polling places on Election Day.
But the law requires mailed ballots to be delivered by Election Day. So anything dropped in a mailbox within a week or so may not get counted.
Political and civic groups have in recent years gone into neighborhoods, asking people if they have returned their ballots and, if not, offered to take it to polling places on their behalf.
Republicans argued that presents too many opportunities for mischief, though they could not cite a single confirmed incident where a ballot was altered or did not get delivered.
Ikuta said the U.S. Constitution gives states the authority and obligation to manage the election process. And she said courts, when considering whether a regulation is permissible, has to balance the state's interests against the burdens placed on someone challenging it.
More to the point, Ikuta said if the regulations are reasonable, courts will generally uphold them as long as they were not enacted for discriminatory reasons.
In this case, she said, Rayes found that the evidence presented showed that voters who have taken advantage of ballot collection services in the past "have done so out of convenience or personal preference,'' not because of any hurdles placed in their path by Arizona law.
Ikuta also said Arizona has options for voters who may have difficulty getting to polling places, including required time off for workers and exceptions to the ballot-harvesting law allowing collection by family members, household members and caregivers.