Updates on Arizona election law challenges (Updated)

Two of the legal challenges to Arizona election law that we reviewed yesterday now have a decision from the court. I’m still waiting on a third case.

The case to block Arizona’s ballot collection law: U.S. court blocks Arizona ban on groups collecting ballots:

[The 9th Circuit Court of Appeals] has blocked an Arizona law making it a felony to collect early ballots, a win for the Democratic get-out-the-vote effort shortly before Election Day.

The order (.pdf) [granting the injunction based on the dissenting opinion from the 3 judge panel] from an 11-judge panel of the 9th U.S. Circuit Court of Appeals means it won’t be a crime for groups to go door to door to collect early ballots from voters and deliver them to the polls. It’s a tactic especially effective in minority communities.

The en banc 9th Circuit panel said it was preserving the status quo for this election and set a full hearing for January on the Democrats’ request to permanently block the law. (The en banc hearing for oral argument is scheduled for January 17, 2017, in San Francisco).

The court also said it will reconsider a ruling by a [separate] panel of three judges who refused to order ballots be counted if Arizona voters go to the wrong polling place to cast them.

UPDATE: Here is the order. Order “En banc argument will be confined to the question of whether or not a preliminary injunction should issue as to future elections. The en banc court willnot consider whether or not out-of-precinct votes should be counted in the pendinggeneral election.”

Democrats say Arizona throws out more ballots cast at incorrect polling locations than any other state and that minorities are more likely to be affected.

The smaller panel of judges agreed with a lower-court judge that Arizona has valid reasons not to count such votes and that there’s no sign of discrimination.

The ballot collection law was enacted by the Republican-controlled Legislature earlier this year, and GOP Gov. Doug Ducey signed it. He called it a common-sense law that protects the sanctity of ballots.

UPDATE: The state of Arizona and the Arizona GOP have appealed to the U.S. Supreme Court. Arizona asks for US Supreme Court review of ‘ballot harvesting’ decision. Justice Kennedy has asked for a response by 9:00 a.m.ET on Saturday. The 9th Circuit Court of Appeals injunction maintains the status quo from previous elections prior to the new law. Does Justice Kennedy stay the injunction or does he refer the petition to the whole Court, which could well divide 4-4, leaving the 6-5 en banc ruling standing?

The Columbus Day voter registration deadline claim: Judge: Post-Columbus Day registrants not entitled to vote:

A federal judge late Thursday refused to order that people who registered to vote on Oct. 11 be allowed to cast a ballot in this election.

Judge Steven Logan acknowledged that the deadline set by Secretary of State Michele Reagan to register for the general election fell on Oct. 10. That is Columbus Day, both a state and federal holiday.

And Logan acknowledged that Arizona law says that when deadlines fall on a holiday, it is moved to the following day.

But the judge said he would not order Reagan to put the more than 2,000 people who signed up on Oct. 11 on the voter registration rolls.

Logan pointed out that the deadline — and the fact it fell on a holiday — had been known for months. But he said the Arizona Democratic Party did not file suit to challenge Reagan’s reading of the law until after the registration deadline “and only a few weeks before the general election is to take place.”

“This delay was unreasonable,” the judge wrote. And Logan said even if there were people who did not register on Oct. 10 because it fell on a holiday, that does not mean they were disenfranchised.

“The holiday deadline did not limit the methods of voter registration,” Logan said. “It merely imposed a timeframe in which voters had to act in order to register to vote in the general election.”

He said other methods were available on Oct. 10, including the offices of 14 of the 15 counties. There also was the option of registering to vote online for those who already have a state-issued driver’s license or identification card.

“The voters at issue here could have registered in time for the general election, but unfortunately did not do so,” he wrote.

An appeal by the Democrats is possible, though time is running out with the election on Tuesday.

PRO TIP: Enact two measures for which I have been advocating for years: (1) automatic voter registration, now enacted in California, Connecticut, Oregon, Vermont, and West Virginia, Automatic Voter Registration and Modernization in the States, and (2) portability of voter registration (8 states — Colorado, Delaware, Florida, Hawaii, Maryland, Ohio, Oregon, and Utah — plus the District of Columbia, have systems of portable registration that allow registered voters who move to cast valid ballots even if they do not update their registrations before Election Day) with same day voter registration to register or to correct any errors in voter registration (15 states — California, Colorado, Connecticut, Hawaii, Idaho, Illinois, Iowa, Maine, Maryland, Minnesota, Montana, New Hampshire, Vermont, Wisconsin, and Wyoming — plus the District of Columbia, currently offer, or have enacted laws which provide for, Same Day registration, allowing eligible citizens to register or update their records on at the polls). Problem solved.

The third case involves voter intimidation by vigilante poll observers: Voter intimidation? Nothing to see here, GOP tells court:

Republicans representing Donald Trump and the Arizona GOP said there’s no effort to intimidate voters at the polls, and urged a federal judge to reject Democrats’ request for an injunction blocking any planned harassment tactics.

In a four-hour hearing before U.S. District Court Judge John Tuchi, Republicans said the complaint is partisan jockeying and has no place in a courtroom.

But Michael Gottlieb, on behalf of the Arizona Democratic Party, said their evidence suggests a coordinated effort to harass and otherwise intimidate voters, particularly minority voters. He based his arguments on statements from the Trump presidential campaign, the state Republican Party and StoptheSteal.org, a web-based exit-polling effort aimed at protecting Trump.

Similar lawsuits were filed in Nevada, Ohio and Pennsylvania. On Thursday, a federal judge in Las Vegas said he didn’t expect to issue the restraining order Democrats were seeking, saying he saw no evidence of an attempt to discourage voters.

Tuchi appeared to be leaning that way, although his ruling is not expected until Friday or over the weekend. He said he wants to leave time for an appeal to the 9th U.S. Circuit Court of Appeals before the Nov. 8 election.

How, he asked Gottlieb, could he craft an injunction without knowing at whom specifically to aim it and what specifically to tell them?

Gottlieb said a directive from the court to Trump’s campaign, the state party and Roger Stone, the backer of the StoptheSteal.org website, to repudiate comments interpreted as intimidation could give would-be agitators pause.

“This is not a hypothetical issue,” Gottlieb said of the intimidation that he said can “clearly” be inferred from statements made by Trump as well as GOP Party Chairman Robert Graham.

“This is an election unlike any other, when the candidate has gone around the country encouraging his followers to engage in aggressive poll watching,” Gottlieb told the court.

[Democrats] pointed to GOP Party Chairman Robert Graham’s statements to local media that poll watchers should follow voters out of the polls and photograph them and their license plates if they think the voter has done something wrong.

But in court, Graham said his comments about trailing voters only pertains to ensuring Arizona’s new ban on ballot collection is not violated. It’s important to have evidence that someone brought in another voter’s ballot, in violation of the law, he said. [Note: The 9th Circuit Court injunction above eliminates this excuse for voter intimidation.] Otherwise, GOP poll watchers, who are trained by the Arizona Republican Lawyers’ Association, are instructed to not challenge voters at the polls, but to present their concerns to the poll inspector.

Attorney Paul Jensen, representing Roger Stone, argued that the judge should drop Stone from the complaint because he lives outside Arizona and therefore outside the court’s jurisdiction. And he mocked arguments that the StoptheSteal.org website is a form of voter intimidation; instead, it’s simply a way to recruit people to do exit polling Nov. 8.

Gottlieb said the evidence suggests otherwise: The website had already signed up more than 100 Arizona volunteers. The exit poll is a facade, he said, for Trump supporters to harass and intimidate voters by confronting them at the polls under the guise of doing a poll. Exit polls are typically done by media organizations, not a group such as StoptheSteal that has openly opposed Democratic presidential nominee Hillary Clinton.

Regardless of how Judge Tuchi rules on the initial injunction request,  I am sure he will notify the parties that they can always return to his court for an emergency order if voter intimidation efforts materialize on election day.

UPDATE: Judge Tuchi has denied the injunction request, but like I said,the judge told the Democrats who sought the injunction that they can come back to court through Election Day on Tuesday, “if they receive additional, material evidence.” Judge finds no evidence that Arizona voters will face intimidation.

Judge Tuchi should probably consider this: Maricopa County GOP to poll watchers: Follow, photograph voters if voter fraud suspected:

Walter Opaska, co-founder of the Arizona Republican Attorney Association, on Oct. 28, told a room of about 100 Republicans being trained to represent the party at polling locations what to do if they see a person bring “a bucket” of ballots into the polling place.

In a recording provided to AZCIR, Opaska urges poll watchers to report such incidents to the poll inspector, who is charged with managing the poll location, and to follow those people to their cars, photograph them, their vehicle and their license plate.

“Preferably, if you can get one, snap a picture of the person’s car – their car and their license plate would be useful too,” Opaska explained. “What we’re basically trying to do is create a paper record.”

Jim Barton, an election law attorney who works for Democrats, said there are some clear guidelines that Opaska’s advice violates.

In 1981, the Democratic National Committee accused the Republican National Committee of organized voter intimidation during the New Jersey gubernatorial race, leading to a consent decree that broadly prohibits voter intimidation tactics.

[Note: This case is back in court this week and an opinion has not yet been issued.]

In 2009, the order was clarified, specifically barring poll watchers from following voters and photographing them, their vehicles or their license plates.

“If they’re belligerent in mannerisms, or if they’re only doing this when they see ethnic minorities – the point is, there’s any of a dozen ways they could possibly harass voters,” Barton said.

Although a New Jersey District Court issued the consent decree, binding only the national parties and the New Jersey state parties, Republican and Democratic election law attorneys agreed that a court would consider the orders as a ruling that could be pretinent to the matter.

Check out this GOP poll observer training:

“You don’t go right up to someone’s face and take a photo. You kind of do it on the sly, and ideally they don’t even know what you’re doing,” LaSota said. “If they don’t know they’re being photographed, how can they be intimidated?”

“Our advice has been consistent: If you see what objectively appears to be a felony violation of law, you are free to take steps to document that,” LaSota said, prior to the news of the 9th Circuit Court’s decision.

Opaska, like LaSota, cautioned the any poll watchers against causing any confrontation with voters.