Lawsuit challenges Arizona’s ‘election day receipt’ law for early mail-in ballots

The Washington Post reports that a Democratic lawsuit challenging Arizona absentee ballot deadline cites Supreme Court ruling on Wisconsin primary:

A Democratic lawsuit challenging Arizona’s absentee (early mail-in) ballot deadline is citing the Supreme Court’s recent ruling about the Wisconsin primary to support its case, arguing that the decision to allow absentee ballots to count in Wisconsin if they were postmarked on or by Election Day should also apply in Arizona.

In a supplemental memo filed Tuesday in federal court, lawyers for a trio of plaintiffs argued that the high court’s ruling bolsters their complaint that requiring absentee ballots to be returned — rather than postmarked — on or by Election Day leads to the disenfranchisement of thousands of voters when their overdue ballots are rejected.

The Supreme Court ruled on Monday of last week that absentee ballots in Wisconsin’s primary had to be postmarked by April 7, the date of election, but could be counted as long as they were received by April 13. Typically, absentee ballots in Wisconsin must be received on or by Election Day to count, making the decision a victory for Democrats as they seek to ease voting restrictions during the coronavirus pandemic.

It should be noted that the April 13 extended deadline was an element of the District Court’s order, a remedy meant to address the changing rules regarding the use of absentee ballots in light of the state’s stay-at-home order in response to the coronavirus pandemic. The Supreme Court was upholding this part of the District Court’s order as a reasonable remedy. The Supreme Court was likely not intending to establish a bright-line rule that “ballots that are postmarked by Election Day will count,” as the Arizona plaintiffs are seeking in this case.

Marc Elias, a Democratic elections lawyer involved in both cases, said precedent may be helpful in the legal push against Arizona’s deadline, which has emerged as the first test of whether lower courts will follow the Supreme Court’s lead. The original suit was filed in November.

“What we’ve asked the court to do is to frankly agree with what the Supreme Court did in Wisconsin, which is to say that ballots that are postmarked by Election Day will count,” Elias said Wednesday. “That’s exactly the relief we seek in Arizona.”

Challenging “Election Day receipt” laws is one priority for Democrats as they seek to roll back restrictions on voting by mail this year. Other goals include allowing third-party ballot collection, free postage and the opportunity for voters to fix a rejected ballot, [and ballot order bias, see below].

Elias, who is leading the effort, said the issue of ballot rejections because of missed deadlines tends to disproportionately affect Native American and Hispanic voters in Arizona.

“It’s an overall problem, but it’s a particular problem because of the impact it has on certain categories of voters,” he said, citing research submitted to the court this week. “We’ve seen covid and what it is doing to rates of absentee voting and also rates of rejection of absentee ballots. . . . We know this burden falls on voters generally but it falls on minority voters more heavily.”

The lawsuit in the U.S. District Court for the District of Arizona was filed on behalf of the Voto Latino Foundation, a nonprofit civic engagement group; Democratic super PAC Priorities USA; and Shelby Aguallo, an Arizona resident who stated in a February court filing that her November 2018 ballot did not count because it did not arrive until two days after Election Day.

“Given what happened in the fall of 2018, I am afraid that my vote will not count again in the upcoming election,” Aguallo wrote in a Feb. 25 declaration. “ . . . Even if I am able to send my ballot back at least a week before the election, I will not be able to incorporate any information or news that breaks in the last week of the election into my decision about the candidates I should vote for.”

Arizona Secretary of State Katie Hobbs, the defendant in the suit, did not immediately respond to a request for comment. Lawyers for Hobbs have argued that the case should be dismissed because some of the plaintiffs lack standing and because Hobbs has “no enforcement authority” to ensure ballots postmarked by Election Day are counted.

The case is VOTO LATINO FOUNDATION v. HOBBS, (No. CV-19-05685-PHX-DWL). On March 13, Judge Dominic Lanza ruled on the Secretary of State’s motion for stay, which was grated in part and denied in part:

Accordingly, IT IS ORDERED that:

(1) The Secretary’s emergency motion for stay (Doc. 26) is granted in part and denied in part. The briefing schedule for the two motions will be as follows.

(2) As for the Secretary’s motion to dismiss the second amended complaint, the motion must be filed by March 20, 2020. (Doc. 24.) Because some of the Secretary’s arguments may pertain to subject matter jurisdiction, Plaintiffs shall have 30 days (i.e., until April 20, 2020) to file a response. See LRCiv 12.1(b). The Secretary may file a reply within 7 days of receipt of the response.

(3) As for Plaintiffs’ pending motion for a preliminary injunction (Doc. 22), the Secretary shall have until April 20, 2020 to file a response. This is nearly two months after the motion was filed, which should afford the Secretary ample time to formulate a response. Plaintiffs may file a reply within 7 days of receipt of the response.

(4) Given the above, both motions should be fully briefed (absent any extension requests by the parties) by April 27, 2020. Although the Court obviously has not yet reviewed the parties’ arguments, and therefore expresses no view on the merit of the parties’ positions, it seems likely that a hearing will be helpful in this case. Thus, the parties are directed to meet and confer to identify three dates on or after May 20, 2020 on which they are available for a full-day evidentiary and motion hearing. The parties shall inform the Court of these possible dates through a joint filing.

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I posted earlier, Democrats challenge ‘ballot order bias’ in several states – Arizona case developments. On December 3, the plaintiffs filed this scathing criticism of the Arizona Secretary of State for requesting a delay of 90 days in the case. Arizona Democrats File Scathing Response to Secretary of State’s Request for a 3-Month Delay in Lawsuit over Ballot Order. The brief recounts the history of several other election law litigation in Arizona, and says the state has a pattern of trying to stall such cases. The brief also asked the court not to grant the 3-month delay. On January 31, the Arizona Secretary of State filed this reply brief. The state continues to insist that all lawsuits of this type are procedurally flawed, and therefore the brief doesn’t discuss evidence. The state maintains that if partisan gerrymandering doesn’t violate the U.S. Constitution, ballot order laws that favor one particular party can’t be unconstitutional either. Arizona Files Brief in Democratic Party Lawsuit on Ballot Order.

There was a preliminary injunction hearing held in early March. Mecinas v Hobbs, 2:19cv-5547 (Judge Diane J Humetewa).

Stay tuned.