The constitutionality of Arizona’s controversial 2016 law that makes it a felony for people to collect the ballots of other voters and bring them to the polls may hang on what appeared to be a divided federal appeals court panel in arguments Wednesday.
Democrats sued the state earlier this year contending the law would disenfranchise thousands of mostly Native American and Hispanic voters who live in rural areas without mail collection and may not have cars to drive to the polls.
If a ruling in the final days before the Nov. 8 voting strikes down the law it could be a boost for the Democrats in Arizona, which has been moving from solidly Republican to closer to a 50-50 split in voting, according to recent polls.
An Arizona judge refused to block enforcement of the law so the Dems appealed to the 9th U.S. Circuit Court of Appeals even though early voting has already begun in Arizona.
“This is really not about fraud but about eliminating a method of voting that’s used by Native Americans and Latinos and people who vote democratic,” Bruce Spiva, attorney for the plaintiffs, including leaders of the Navajo tribe and the Democratic National Committee, told the three-judge panel.
The lawsuit claims violation of the Voting Rights Act Arizona, which had been subject to federal approval of its election law changes for 38-years, saw that constraint lifted when the U.S. Supreme Court relaxed the Voting Rights Act protections in 2013.
In March 2016, the state enacted H.B. 2023, which makes it a felony to turn in a signed and sealed ballot to a county registrar on behalf of another person, a practice known as “ballot harvesting.” Arizona’s Hispanic, Native-American and African-American communities have relied heavily on community members, organizers and friends to deliver ballots to registrar’s in past elections, according to the lawsuit.
The lead plaintiff, Leslie Feldman, a Democrat, said she waited in line to vote for nearly five hours in March 2016, for the presidential party preference vote, with her two young daughters. Once inside the polling center, she was told they had run out of Democratic ballots and she had to wait another 25 minutes. She did not vote until 8:05pm and when she left hundreds of people were still waiting in line, according to the lawsuit.
The appeal claims constitutional violation of the equal protection clause of the Fourteenth Amendment, the First Amendment and the Voting Rights Act.
Judges Grill Both Sides
During questioning, Judge Sandra Ikuta grilled Spiva about how the plaintiffs could show minorities faced a heavier burden on their right to vote, a legal standard called “disparate impact.”
“How do you show disparate impact? Why was the district court wrong,” Ikuta asked. “I do not see evidence that [ballot collection] was not also used in white communities,” she said.
Spiva responded that there is evidence of things like having no auto to get to the polls, or no mail service. But he added that Arizona has chosen not to keep specific data on the voting.
“Doesn’t the Arizona democratic party have that? Couldn’t they capture that data since they are collecting the ballots,” she said.
Chief Judge Sidney Thomas weighed in with tough questions for the state’s lawyer.
“We have affidavits saying this is mostly used by Hispanics or Native-Americans and it falls more heavily on them,” he said. “I don’t see anything on the other side of the coin. Where does this leave us?” he asked.
Thomas noted one reservation in Arizona is 2.8 million acres, about the size of Connecticut and has 14,000 voters and no mail service. “That is a significant barrier that white voters in Phoenix don’t have. There is no white comparison. There is no white reservation,” he said.
Karen Hartman-Tellez responded, “There is not a single bit of evidence that someone would not be able to vote or voting would be more difficult,” she said. Arizona has a 27-day early voting window, she noted. The trial judge did not abuse his discretion by denying the Democrat’s injunction request.
Backing the state position was the Republican Party Attorney Sara Ahler. She argued that three other states make it a felony to collect ballots, including California, New Mexico and Indiana.
In the end, the deciding vote may well come from Judge Carlos Bea, who only asked a couple questions at the end and appeared interesting in what standard the appeals court must use to decide if it should defer to the state legislature and the trial judge’s holding.
An early claim in the lawsuit, alleged that Arizona had also improperly restricted voting by cutting the number of polling places by 85 percent since 2008, causing long lines, particularly in minority communities. That claim was settled prior to the appeal.
Among the panel judges, Ikuta and Bea were appointed by President George Bush, Thomas was appointed by President Bill Clinton.
Case: Feldman v. Arizona, No. 16-16698
View oral argument here.