Arizona criminalized one of the most popular and effective methods for minority voters to cast ballots and the 9th U.S. Circuit Court of Appeals refused Friday to block the 2016 law over challenges by Native Americans and Democrats.
The appeals court, in a 2-1 vote rejected an emergency appeal to enjoin Arizona’s enforcement of the new law for the November 8 presidential election.
The law 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. The practice of early collection of ballots, dubbed ballot harvesting, was an important part of the Democratic get-out-the-vote strategy in Arizona, where 80 percent of ballots are case by early voting, according to the court.
The Navajo Nation, Democrats and others 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.
“The district court did not err in crediting Arizona’s important interest in preventing fraud even in the absence of evidence that voter fraud had been a significant problem in the past,” wrote Judge Sandra Ikuta for the majority. She was joined by Judge Carlos Bea in casting the deciding vote.
Both judges are Republican appointees of President George W. Bush.
They found the plaintiffs failed to produce enough evidence that minority voters were disproportionately harmed.
“In sum, we conclude that the district court did not clearly err in finding that H.B. 2023 imposed a minimal burden on voters’ Fourteenth Amendment right to vote,” the judge said.
In dissent, Chief Judge Sidney Thomas said, “This law violates the Constitution and the Voting Rights Act.”
Thomas was appointed by Democratic President Bill Clinton.
Thomas pointed out during oral arguments earlier this month that one Indian reservation in the state is the size of Connecticut and has 14,000 people and no mail service. The ballot collection is a popular and important method for minority voting, he said.
“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,” Thomas wrote.
“The plaintiffs established that the anti-ballot-collection law significantly burdens the voting rights of minorities, particularly Hispanic and Native American voters,” he said.
“There are many burdens and challenges faced in Arizona by Native Americans, Hispanics, African-Americans, the poor and the infirm who do not have caregivers or family. With H.B. 2023, Arizona has added another: disenfranchisement,” he said.
The lawsuit claimed 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.
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