Divided 9th Circuit Rejects Dems’ Voting Challenge to AZ “Ballot Harvesting” Law, But En Banc May Be Coming


Arizona passed a law limiting who is allowed to collect a completed absentee ballot from voters (so called “ballot harvesting”). Democrats and others filed suit claiming that the law was unconstitutional and a Voting Rights Act violation. A divided 9th Circuit panel voted 2-1 to allow Arizona to enforce the law pending further proceedings (affirming the district court denial of a preliminary injunction). The judges divided along the ideological lines you would expect, with the two conservatives siding with Arizona and the one liberal siding with the plaintiffs.

A 9th Circuit judge has now sua sponte requested en banc consideration, and the court has ordered briefs filed by tomorrow, with an order probably to follow within a day or two (given the exigencies of the election).

I confess I find this to be a difficult case. On the one hand, the state does have an interest in preventing voter fraud, and when fraud does happen (including in parts of Arizona) it has been with absentee ballots and vote buying. Discouraging ballot harvesters can deal with that risk of vote buying. (I am less convinced by the public confidence in the electoral process argument, which seems not to depend on the specific election laws of the state). (As for the Purcell/delay issue, it looks like the problem has been with the timing at the district court, not any dilatory action of the plaintiffs.)

On the other hand, there is some evidence that the great distances in Arizona means that some voters, especially Native Americans, may be burdened by the lack of third parties available to collect ballots. From Judge Thomas’s d

The burden of the law on Arizona minority voters is substantial and occurs in both urban and rural areas of the state. The uncontradicted evidence presented to the district court showed that a substantial number of minority voters used ballot collection as their means of voting. As Maricopa Board of Supervisors Steve Gallardo testified: “ballot collectors are used in large part by Latino and Native American groups and [ballot collecting] has come to be critical in enabling voters in those communities to exercise their fundamental right to vote.”

The record demonstrated that, in many rural areas with a high proportion of minority voters, home mail delivery was not available, and it was extremely difficult to travel to a post office. No one contested the fact that the rural communities of Somerton and San Luis, which are comprised of 95.9% and 98.7% Hispanic voters, respectively, were without home mail delivery and reliable transportation. As the representative for that district testified, “[b]ecause many of these voters are elderly and have mobility challenges, it is a common practice in this area to have one neighbor pick up and drop off mail for others on their street as a neighborly service.” Th e representative noted that there is only one post office, which is located across a highway crowded with cars waiting to cross the border, and is virtually inaccessible by foot. Another example of the impact of the law on minority voters is the Tohono O’odham Indian Nation. The Tohono O’odham reservation constitutes over 2.8 million acres in the Sonoran desert. It is an area larger than Rhode Island and Delaware, and approximates the size of Connecticut. It has about 14,000 registered voters. It does not have home mail delivery. It has one post office, which is over 40 miles away from many residents. The evidence in this case shows that restrictions on ballot collection affect the Tohono O’odham tribe significantly. No one contested the fact that the members of the Tohono O’odham Indian Nation have limited access to a postal service and no home mail delivery. Similarly, no one disputed that members of the Cocopah Indian Tribe do not have home mail delivery or easy access to a post office. The Cocopah Reservation is located along the lower Colorado River, south of Yuma, Arizona. The CocopahReservation comprises approximately 6,500 acres, with approximately 1,000 tribal members who live and work on or near the Reservation. As to urban areas, record evidence demonstrated that the burden of the law affected minority voters the most because of socioeconomic factors. Minority voters in urban areas were more likely to be economically disadvantaged. The record showed that many minority urban voters lived in places with insecure mail delivery; that many minority urban voters were dependent upon public transportation, which made election day in-person voting difficult; that many minority voters worked several jobs, making it difficult to take time off work to vote in person; and that many infirm minority voters did not have access to caregivers or family who could transmit ballots.

Stay tuned.

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