AZ GQP Chair and election denier Coup Plotter insurrectionist Kelli Ward, and her lawyer, Alexander Kolodin, now a member of the Arizona legislature, lost again in their bid to kill early voting by mail in Arizona, something Republicans pioneered in tis state over 30 years ago.
Howard Fischer reports, Mail-in balloting survives appellate court challenge:
All Arizonans will continue to be able to vote by mail despite efforts by the state Republican Party to kill the practice.
The state Court of Appeals on Tuesday rejected arguments by a lawyer for the GOP and Kelli Ward, its chair, that allowing people to vote from their own homes or anywhere other than a polling place violates a constitutional requirement for a secret ballot. Judge Cynthia Bailey, writing for the three-judge panel, said there are sufficient safeguards built into Arizona law to ensure that each voter’s choices are kept confidential as the Arizona Constitution requires.
BREAKING: Appeals Court UPHOLDS Arizona's Mail-In Voting Laws, Blasts AZGOP/Kelli Ward Arguments
— AZ's Law (@arizonaslaw) January 17, 2023
Tuesday’s ruling is unlikely to be the last word. Attorney Alexander Kolodin told Capitol Media Services the appellate judges got it wrong and he plans to seek Supreme Court review.
Former Cyber Ninjas & @AZGOP attorney who argues early voting is unconstitutional is now vice chair of Arizona House committee that hears elections bills. Here he's meeting w committee chair & vice chair of AZ Freedom Caucus @electjacqparker, while gov delivers State of State. https://t.co/KK2QJcAG7h
— Brahm Resnik (@brahmresnik) January 10, 2023
Arizona has had some form of early voting almost since the first days of statehood. But that was limited to special circumstances, ranging from military serving overseas to people who were incapacitated.
In 1991, however, state lawmakers approved no-excuse early voting, allowing anyone to request a ballot be sent to them which they can fill out at home — or anywhere — and either return it by mail, put in a drop box or taken directly to a polling location.
The practice has proven widely popular, with early ballots making up more than 80 percent of the votes cast in the most recent general election.
Attitudes in the GOP changed, however, after the 2020 election where Donald Trump lost his bid for a new term. While he outpolled Democrat Joe Biden among voters who went to the polls on election day, Biden had an even larger edge among those who voted early.
Objections continued into the 2022 campaign, with Republican gubernatorial hopeful Kari Lake and Mark Finchem, who was running for secretary of state, both suggesting the system of unrestricted mail-in voting was ripe for abuse.
The lawsuit takes a narrower focus based on that constitutional requirement “that secrecy in voting shall be preserved.”
Strictly speaking, Kolodin is not arguing that people can’t have a ballot sent to them by mail.
What he told the judges, though, is that the constitutionally mandated secrecy can be maintained only if an official is present when someone actually casts a ballot, and that the official “then watches the voter enclose and seal the ballot in an envelope.”
Kolodin said that can’t happen if someone is filling out a ballot at a kitchen table and sealing it there because it raises the possibility that someone else is present and watching.
More to the point, he said it opens up the possibility that someone could be coerced — or maybe even paid — to vote a certain way. That, Kolodin said, can’t happen if there is a “restricted zone” around the voter.
Bailey rejected that argument, saying that’s not what the Arizona Constitution requires.
“Arizona’s mail-in voting laws preserve secrecy in voting by requiring voters to ensure they fill out their ballots in secret and seal the ballot in an envelope that does not disclose the voters’ choices,” she wrote for herself and the other two judges.
The judge also pointed out that state law requires election officials who open the envelopes to take out the ballots without unfolding or examining them.
“At no point can the voter’s identifying information on their ballot envelope be lawfully connected with their vote,” Bailey said. “These protections are adequate to ensure the preservation of secrecy in voting.
The judges were no more impressed with Kolodin’s arguments that the ability of a voter to share his or her decisions with someone else violates the constitutional requirement for secrecy.
.Bailey pointed out that state law prohibits taking photographs or videos within 75 feet of a polling place. And another statute make it a crime to show someone else’s ballot to any person.
But she also noted that state lawmakers specifically created an exemption that allows voters to take pictures — and even share images of — their own ballots with others without violating any laws.
And she said Kolodin’s argument there needs to be a “restricted zone” around voters when they fill out their ballots is not what the Arizona Constitution requires.
“The Secrecy Clause’s meaning is clear: When providing for voting by ballot or any other method, the Legislature must uphold voters’ ability to conceal their choices,” she said. “The Constitution does not mandate any particular method for preserving secrecy in voting.”
Kolodin said what’s wrong with the ruling is the conclusion by the appellate judges that voters can waive their right to secrecy.
“The Court of Appeals came down, without really any substantiation for it, and said it’s waivable by the voter, which, of course, the framers of the Arizona Constitution never intended for it to be,” he said. Kolodin said Tuesday’s ruling provides “a very clean issue” for the Supreme Court to review.
But even he conceded there is no guarantee the state’s high court will take up the issue.
In the Tuesday decision, Bailey said there is a remedy if the state GOP wants something more.
“The Legislature is free to adopt the more stringent requirements urged by plaintiffs,” the judge wrote. “But it is not constitutionally required to do so.”
As matter of fact, newly elected election denier and longtime voter suppression activist Liz Harris proposes to do just that. Howard Fischer reports, Newly elected Chandler legislator proposes outlawing voting by mail and more:
A Chandler state lawmaker who wants to overturn the 2022 election is trying to get colleagues to outlaw voting by mail.
The proposal by Rep. Liz Harris, R-Chandler, says anyone who wants to vote must go to the polls. HB 2229 says the only exception would be those who are physically unable or those in the military who are overseas.
Harris also is sponsoring HB 2232. It not only would preclude early voting – even in person – but also require that all ballots be counted by hand.
And her HB 2233 seeks to expand the grounds on which anyone could sue to overturn election results and give them and their allies the power to inspect every ballot. Current law permits the review of only a random sample.
But it is her bid to require people to go to the polls and vote in person that could have the broadest impact.
In the most recent race, more than 80% of the nearly 2.6 million voters chose to take advantage of a 1991 law that allows anyone to request an early ballot. But Harris said that doesn’t make it right.
She said the audit of the 2020 election ordered by then-Senate President Karen Fann provided access to both the ballot envelopes and each person’s voter registration card.
“They have a 12% mismatch rate that’s a firm mismatch rate,” Harris said. She said people “can see it firsthand” – if they sign a non-disclosure agreement.
Harris, who lost her 2020 bid for the legislature before winning a House seat this year, said this isn’t about Donald Trump who was defeated that year or even Kari Lake who continues to insist that the gubernatorial election was stolen from her. She said the problem has existed since the law was adopted three decades ago.
So why would voters – and lawmakers – agree to kill a program that has proven so popular? Harris said it comes down to convincing the majority that there was fraud in the election and that their votes were stolen.
“Their vote is being canceled because there’s another vote being entered into the system,” she told Capitol Media Services. And Harris said the reason people don’t know that is “the media.”
Similar claims were raised in lawsuits challenging both the 2020 and 2022 elections. But challengers have failed in each attempt to convince a judge that any laws were broken.
Harris’s legislation is based on the legal theory that the only form of voting specifically authorized by the Arizona Constitution is in person and on Election Day. And she is hanging her hat on requirements for a “secret ballot.”
“An election by secret ballot is an election in which voters are provided absolute protection against the possibility of any other person knowing how they voted,” Harris wrote in her legislation. And that, she said, includes family members, friends and coworkers.
“A person who is the head of a household can demand that the household vote together at the kitchen table or that any adult children allow the head of the household to vote their ballots since they live in that person’s home,” Harris said in HB 2229.
What in-person voting also precludes, Harris said, is the ability to buy someone’s vote, as the person offering the money has no way to know how the other person who was paid off, filling out his or her ballot inside a voting booth, actually marked the ballot.
“This physically protected area is the polling booth with privacy curtain, within a staffed polling location, with the ballots strictly controlled within the polling location and with no ballots coming in or going out,” her legislation reads. “Ballots are voted on site, folded and placed in a ballot box.”
If the arguments sound familiar, they should.
They closely parallel claims made by attorney Alexander Kolodin last year in a lawsuit filed by the Arizona Republican Party. And he, too, cited that constitutional right to a secret ballot in his bid to kill early voting.
Mohave County Superior Court Judge Lee Jantzen acknowledged that Kolodin presented examples of “bad actors” violating laws dealing with early voting.
That includes instances in Yuma County where a woman pleaded guilty to collecting the early ballots of others and, in some cases, marking how they should be voted. The judge said, however, that didn’t make the system unconstitutional.
“Furthermore, they do not show a pattern of conduct so egregious as to undermine the entire system of no-excuse mail-in voting as provided by the Arizona Legislature,” he wrote. “Enforcement mechanisms exist within the statutes to punish those that do not abide by the statutes.”
Kolodin, elected this year along with Harris to the state House, has taken the case to the Court of Appeals which head arguments last month but has not yet issued an opinion.
Harris is doing more than introducing bills to change laws on voting based on her beliefs that prior elections were stolen.
Just days after the election, Harris staked out a public position by not only demanding a revote of the Nov. 8 election but saying that “I will now be withholding my vote on any bills this session without this new election in protest to what is clearly a potential fraudulent election.”
Even though Republicans hold a bare 31-29 margin in the House, her refusal to go along may not matter.
Any measure approved strictly on party lines is likely to be vetoed by Democratic Gov. Katie Hobbs. And if legislation has bipartisan support, Republicans won’t need her vote.
All of Harris’s insane bills will be vetoed by Gov. Hobbs, if they even make it out of committee. I told you before the election that it was irresponsible to send this longtime voter suppression activist to the legislature, but did voters in Chandler listen? Nooo. Now we have to deal with this nut job.