The 9th Circuit Court of Appeals late Friday upheld Arizona’s discriminatory ballot collection law, which has a disparate impact on Native American and Latino communities. It is the final word for this election, but will not be the final word on this law. Divided Ninth Circuit panel upholds Arizona ballot harvesting ban:

Voting-RightsSaying there was no proof of racial discrimination, a federal appeals court ruled (.pdf) late Friday upheld the state’s new law against “ballot harvesting.”


Judge Sandra Ikuta, writing for the divided three-judge panel of the 9th U.S. Circuit Court of Appeals, acknowledged there was evidence that the law which took effect in August could make it more difficult for residents of rural communities, particularly those with limited or no mail service. The same is true, she said, of voters who are homebound and the elderly.

But Ikuta said there was “no evidence that these categories of voters were more likely to be minorities than non-minorities.”

That failure is significant: Federal courts can void state laws for violating the Voting Rights Act only if judges conclude that the statute has a disparate effect on minorities. Without that, Ikuta said, this challenge fails.

Proponents argued that the ability of any person to handle anyone else’s ballot provides an opportunity for fraud. Ikuta, in her 58-page opinion, said that concern is legitimate.

“A state indisputably has a compelling interest in preserving the integrity of its election process,” she wrote. And Ikuta said while the best method of doing that may be debatable, “the propriety of doing so is perfectly clear.”

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The majority ruling drew a stinging dissent from Chief Justice Sidney Thomas.

“Arizona has criminalized one of the most popular and effective methods by which minority voters cast their ballots,” he wrote. And Thomas disputed Ikuta’s conclusions, saying he believes that the impact on minorities is enough to declare the law unconstitutional.

“The sponsors of the legislation could not identify a single example of voter fraud cause by ballot collection,” he wrote in his own 29-page dissent. “Not one.”

Instead, Thomas said, the law was “based on the speculative theory that fraud could occur.” And he said there was testimony showing that there are various safeguards in place to deal with potential problems, like signs that someone may have tampered with someone else’s ballot.

“In short, the specter of voter fraud by ballot collection is much like the vaunted opening of Al Capone’s vault there is simply nothing there.”

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Ikuta, for her part, said laws like this can strengthen public confidence in the integrity of the electoral process which “encourages citizen participation in the democratic process.” And she said there is no requirement for the state to wait for a problem to develop.

“Legislatures are permitted to respond to potential deficiencies in the electoral process with foresight rather than reactivity,” Ikuta wrote.

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Friday’s ruling is not necessarily the last word.

All the decision did was deny a bid by challengers to enjoin the state from enforcing the new law at this election. It is now likely too late to pursue further appeals. [The “Purcell Principle” applies this close to election day.]

Technically speaking, foes can still pursue their arguments at a full-blown trial — months or years from now — that the law should be voided. But in denying the injunction, the majority had to conclude that foes were unlikely to prevail in the long run.