9th Circuit Court of Appeals to hear ballot collection appeal today (Updated)

The AP reports today that the Ninth Circuit Appeals Court to consider blocking ballot-collection law:

A federal appeals panel that rejected a Democratic effort to block a new Arizona law barring groups from collecting early ballots from voters now has expedited a full hearing on the request.

The 9th U.S. Circuit Court of Appeals has scheduled arguments for Wednesday. Last week, a panel summarily rejected an emergency injunction request. But late Friday, the three judges on the panel decided to expedite a full hearing on the Democrats’ request. The previous schedule called for hearings well after the Nov. 8 general election.

Appellants’ Emergency Motion Under Circuit Rule 27-3 For Injunction Pending Appeal And for Expedited Appeal(.pdf), Feldman v. Arizona Secretary of State’s Office, (No. 16-16865) 10/18/2016.

A different three-judge panel is set to hear the case.

The new law signed by Republican Gov. Doug Ducey earlier this year means people who collect mail-in ballots in most cases face a felony charge.

U.S. District Court Judge Douglas L. Rayes last month shot down Democratic groups’ request for an injunction to keep the law from being enforced. In his opinion, Rayes said lawyers representing state and national Democratic groups failed to show that the law would disparately impact minority voters. He said it “simply regulates an administrative aspect of the electoral process.”

Democrats appealed, urging the 9th Circuit to overturn Rayes and issue an injunction blocking the law.

Spencer Scharff, voter protection director for the Arizona Democratic Party, said the decision to expedite the hearing is a good sign.

“We are optimistic that the 9th Circuit will rule in our favor and find that we are likely to succeed on the merits and issue an injunction,” Scharff said. “That would prevent the state of Arizona from enforcing H.B. 2023, a measure that criminalizes the act of helping a neighbor vote.”

The Democratic groups sued Secretary of State Michele Reagan, but the state Republican Party intervened and asked to be a party to the lawsuit.

* * *

Both parties have used ballot collection to boost turnout during elections by going door-to-door and asking voters if they have completed their mail-in ballot. If they have not, they urge them to do so and offer to return it to elections offices.

Democrats have used the method aggressively in minority communities and argue their success prompted the new GOP-sponsored law.

The lawsuit filed by the Democratic National Committee, Democratic Senatorial Campaign Committee, state Democratic Party and numerous voters alleged the law violated the federal Voting Rights Act. In their injunction request, they argued there has been a lengthy history of discrimination at the polls in Arizona and that the law was orchestrated to suppress voter turnout among Democratic voters.

Democrats are also appealing another ruling by Rayes that rejected their request to order election officials to count ballots cast by voters in the wrong precinct. They say the practice disparately affect minority voters. But Rayes said the state has a valid reason not to count such votes because different races are on ballots in different precincts and Democrats haven’t shown that minorities were affected more than white voters.

The Court will rule quickly on this appeal ahead of election day. Stay tuned.

UPDATE: It is always a risky thing to predict an outcome from oral argument, as judges frequently play the devil’s advocate to test the lawyers’ case. But it sounds like things went well at this hearing. The Arizona Capitol Times (subscription required) reports, Judges suggest ‘ballot harvesting’ law may discriminate against Latinos, Native Americans:

Federal appellate judges on Wednesday questioned assertions by attorneys for the state and its Republican Party allies that a new law outlawing “ballot harvesting” does not target minorities.

Assistant Attorney General Karen Hartman-Tellez argued that the law, approved earlier this year, is a legitimate — and legal — effort by the Republican-controlled Legislature to ensure the integrity of elections.

She conceded that making it a felony to collect the ballots of others might result in some inconvenience. But Hartman-Tellez said there was no proof that minorities would be harder hit.

Judge Sidney Thomas said that ignores evidence that 14,000 people living on the 2.8 million acre Tohono O’odham reservation have no postal service.

“That’s a significant barrier that’s different from the barrier that white citizens would have in Phoenix,’’ he said.

“There’s no comparative white group,’’ Thomas continued. “There’s no white reservation.’’

The judge also noted a similar situation in the largely Hispanic border community of San Luis.

Hartman-Tellez said there are white-majority rural communities that also lack household mail delivery. But even if that were not the case, she told the three-judge panel that none of that is enough to void the law that took effect in August.

“There isn’t a single declaration, anything, from a person who says, ‘I’m going to not be able to vote now that this law is in effect,’ or that ‘It’s going to be much more difficult for me to vote,’” she argued.

The law makes it a felony, punishable by a year in state prison, to “collect’’ the voted or unvoted ballot of another. The only exceptions are for relatives, members of the same household and certain caregivers.

That question of how the law affects minorities is important because the lawsuit filed by the Arizona Democratic Party and its allies relies on a provision of the federal Voting Rights Act making it illegal to enact changes in election laws that have a disparate effect on the rights of minorities.

Hartman-Tellez pointed out that U.S. District Court Judge Douglas Rayes, in refusing last month to stop the state from enforcing the law, concluded there was no “quantitative evidence’’ to show minorities were more likely to be harmed than anyone else.

But appellate Judge Sandra Ikuta said there’s a small problem with what Rayes ruled. She said there’s nothing in the law that requires challenges to offer up such hard data.

With that not a requirement, Thomas said that leaves courts to weigh what evidence it does have.

He said in this case that includes sworn affidavits that allowing others to collect their ballots is mostly used by Latinos and Native Americans. There also are similar statements from legislators representing affected areas.

“And I don’t see anything on the other side of the coin that it’s heavily used by anybody else,’’ Thomas said.

Sara Agne, representing the Arizona Republican Party which intervened to defend the law, told the appellate judges it is justified because it helps protect against election fraud.

“It’s in the state’s interest to have that chain of custody information,’’ she said. “That’s one of the reasons the state has implemented this sensible election regulation.’’

Agne said a majority of other states have similar laws, though only a handful make it a felony like Arizona.

But Bruce Spiva, representing the Arizona Democratic Party and its allies, told the judges that fear of fraud is not enough to impose this kind of burden.

“This law might disenfranchise thousands of people on the one hand,’’ he argued. “On the other hand, not one single instance of fraud has been shown.’’

Spiva also told the court they need to consider “Arizona’s lengthy and infamous history of discrimination among its minority citizens.’’

The appellate judges could rule within days. That is because early voting already has started in Arizona and, along with it, the restriction on who can return someone else’s ballot.

Challengers to the law also raised another issue in their legal papers.

They pointed out that election officials throughout the state have said they have no intention of trying to enforce the law.

“We’re not police,’’ Pima County Elections Director Brad Nelson told Capitol Media Services when the law took effect. Pima elections director on ‘ballot harvesting’: ‘We’re not police’. And Maricopa County Recorder Helen Purcell said her staffers will process ballots as they’re brought in, whether one at a time or with one person having multiples. Maricopa County poll workers won’t enforce new ballot-harvesting law.

In their legal papers, challengers say the result is that the Arizona Republican Party “is training poll watchers to use it to interrogate and intimidate voters’’ who may have to show up in person to drop off their early ballots.

Agne, in her own legal brief, told the appellate judges to ignore that claim.
“To be categorically and unequivocally clear, the (Republican) Party does not use, implement, or permit its member or volunteers to use or implement any harassment or ‘voter intimidation tactics,’” she wrote.

That would be because there is a longstanding consent decree that bars the RNC from engaging in such activities. The case, Republican National Committee vs. Democratic National Committee, dealt with a consent decree issued in 1982 that prevents the RNC from engaging in some voter fraud prevention efforts without prior court consent. It specifically said the RNC could not engage in ballot security efforts (later defined in 1987 as “ballot integrity, ballot security or other efforts to prevent or remedy vote fraud,” according to the U.S. Court of Appeals for the Third Circuit opinion), especially in areas where racial or ethnic makeup could be considered a reason for the activities.

In the consent decree, “The RNC agreed that the RNC, its agents, servants, and employees would be bound by the Decree, ‘whether acting directly or indirectly through other party committees.”