9th Circuit strikes down Arizona’s ‘ballot harvesting’ law (Updated)


Bloomberg News reports, Arizona Ballot Laws Tossed, U.S. Supreme Court Review Likely:

An Arizona election law restricting who can return early ballots was struck down by a federal appeals court because it discriminates against minorities, a decision that sets up a likely showdown at the U.S. Supreme Court.

The en banc U.S. Court of Appeals for the Ninth Circuit ruled that the law violated the Voting Rights Act. It also tossed a policy in Arizona that allows ballots to be thrown out if the vote was cast at the wrong precinct.

The “ballot harvesting” law challenged by Democrats criminalizes the collection of another person’s ballot.

“Minority voters rely on third-party ballot collection” far more than white voters, the 11-member Ninth Circuit panel said.

“Arizona’s long history of race-based voting discrimination” and “the false, race-based claims of ballot collection fraud used to convince Arizona legislators to pass” the law were among the reasons the majority found that lawmakers acted with intentional discriminatory intent.

But four members dissented, saying the majority went too far in finding that the Arizona Legislature acted with discriminatory intent. Dissenters said the majority drew “factual inferences that the evidence cannot support” to strike “down Arizona’s duly enacted policies.”

Rick Hasen, an election law professor at the University of California-Irvine, said the Supreme Court is likely to weigh in.

You can find the 432 pages of opinions at this link. I strongly suspect that the Supreme Court will take this case, which reversed a lower court and a three-judge Ninth Circuit panel. A finding of intentional discrimination is especially important because it provides a basis for someone to ask Arizona to face preclearance for voting changes under the bail-in provisions of Section 3 of the Voting Rights Act.

That could be an incentive for the Supreme Court to weigh in, said Pepperdine University election law professor Derek Muller.

Disputes over “ballot harvesting” measures are popping up in numerous jurisdictions, said Florida State University election law professor Michael Morley.

Democrats generally support liberalizing who can collect such ballots, whereas Republicans typically want stricter limits on such efforts to deter election fraud.

The Supreme Court may want a say in how lower courts go about inferring discriminatory intent when passing such law, Morley said.

This case is Democratic Nat’l Comm. v. Hobbs, No. 18-15845, 1/27/20.

This is the second time the Supreme Court will be asked to consider Arizona’s ballot harvesting law. Only days before the November 8, 2016 election, the Supreme Court granted Arizona’s emergency application to reverse the en banc 9th Circuit Court’s order to stay H.B. 2023, thereby allowing the Arizona law to remain in effect in advance of the election. See, Amy Howe at Scotusblog, Justices reinstate Arizona ban on “ballot harvesting” for election.

It is likely that this Supreme Court is not any more inclined to sustain the 9th Circuit Court order in this case.

UPDATE: As expected, Attorney General Mark Brnovich is asking a federal appeals court to allow Arizona to continue enforcing the “ballot harvesting” law that a majority of the panel just found unconstitutional. Brnovich to take ‘ballot harvest’ case to Supreme Court:

In new legal filings Friday [1-31-2020], Brnovich told the judges that changing the rules now could have a confusing effect. He pointed out that early ballots for the March 17 presidential preference primary started going out Saturday for overseas voters, with the rest being mailed on Feb. 19.

“Once ballots are received, voters can began voting,” he told the 9th Circuit Court of Appeals. More to the point, he said that, based on the appellate court ruling, those ballots “are subject to being harvested.”

So Brnovich wants the judges to agree not to enforce their ruling while he takes the case to the U.S. Supreme Court.

[The court also noted there was no actual evidence of fraud in Arizona. Brnovich, in his new filing, does not dispute that.]

It will be just Brnovich who files that appeal.

Secretary of State Katie Hobbs, the state’s chief elections officer and a defendant in the original lawsuit [a statutory defendant], said she won’t be joining Brnovich in his bid to have the 9th Circuit ruling reviewed or overturned.

Potentially more significant, an aide to Hobbs told Capitol Media Services that her boss believes that the 2016 law making the practice illegal was enacted with a “discriminatory intent.”

“That’s one of the reasons she voted against the bill when she was in the Legislature,” said Murphy Hebert.

That statement could undermine Brnovich’s efforts to get the high court to overturn the 9th Circuit ruling.


  1. The basket of voter suppression tools Republicans use is seemingly endless. It’s tragic, because all these tools are based on their tremendous insecurity in that they cannot appeal to people based on their policies. They know a real majority rejects them, so they try to narrow the pool of voters. The Florida situation is one of the most egregious, where the Repub legislature essential wants to negate a massively voter approved constitutional amendment on restoring felons voting rights. It’s pretty simple really, if the Republicans claim their proposal is about “voter security”, it’s a flat lie.

    • The Republicans always remind me of a spoiled brat who, when told NO! by one parent immediately run to the other parent who always says YES. In this case the other parent is a stacked Supreme Court.

  2. Democrats generally support liberalizing who can collect such ballots, whereas Republicans typically want stricter limits on such efforts to deter election fraud voting.

    They should at LEAST get the motivations of the two sides correct.

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