Amy Howe of SCOTUSblog reports Justices reinstate Arizona ban on “ballot harvesting” for election:
Only days before the November 8 election, an emergency application involving voting procedures was filed at the court – specifically, a challenge to an Arizona law, known as H.B. 2023, that makes it a felony for anyone other than election officials, mail carriers, family members, or caregivers to collect early voting ballots. [Saturday] morning the justices blocked (Order) the ruling by the U.S. Court of Appeals for the Ninth Circuit in favor of the challengers, thereby allowing the Arizona law to remain in effect in advance of Tuesday’s election.
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Late yesterday afternoon, Arizona asked the Supreme Court to step in, reverse the en banc court’s “unprecedented and unsustainable order,” and allow the law to remain effect. It relied heavily on Purcell v. Gonzalez, a 2006 challenge to another Arizona voting law. Purcell, the state contended, suggests that, as an election draws nearer, courts should be more reluctant to order changes to voting laws, because of the possibility that doing so will cause voter confusion and incentives not to go to the polls. With only four days before the election, the state emphasizes, “emotions and rushed judgment typically have no place and should be avoided.”
Arizona adds that H.B. 2023 is hardly an outlier: twenty-six other states bar this kind of ballot “harvesting,” while thirteen other states make it a felony.
The state’s stay application went to Justice Anthony Kennedy, who is responsible for the geographic area that includes Arizona. Soon after receiving the application last night, Kennedy directed the challengers to respond by 9 a.m. this morning.
In the brief that they filed this morning, the challengers cited Arizona’s “long history of racial discrimination” and emphasize that ballot “harvesting” has long been “one of the most popular and effective methods of minority voting in Arizona.” The burdens imposed by H.B. 2023, they contended, “fall disproportionately on minority voters,” who may face significant obstacles to either voting in person or delivering their early voting ballots themselves. As an example, they pointed to one Indian community in Arizona, the Tohono O’odham Nation, which occupies land roughly the same size as Connecticut but has only one post office and no home mail delivery.
The challengers dismissed the state’s efforts to justify the ballot-harvesting bar as an anti-fraud measure. Not a single supporter of the bill, they stressed, could point to even one incident of actual ballot-collection fraud. Moreover, they continued, other “substantial security measures” are already in place to combat fraud.
The challengers also rejected the state’s suggestion that the court’s ruling in Purcell favors the state. If anything, they asserted, it’s the other way around: Reversing the en banc court’s ruling would cause more confusion because ballot collection has been standard practice for many years, and ballot-collection efforts started up within hours of the en banc Ninth Circuit’s ruling. And allowing that ruling to stay in effect would not change election procedures, particularly when election administrators have said that they do not intend to enforce the law.
Kennedy could have acted on the state’s request himself, but instead he opted to refer it to the full court. Shortly after 11 a.m. this morning, the court granted the state’s request, in a brief two-sentence order. The Ninth Circuit’s injunction, the court indicated, “is stayed pending final disposition of” the appeal in that court – which as a practical matter means that the ballot-harvesting bar will be in effect for Tuesday’s election. There were no noted dissents from the court’s order, so there is no way to know which justices voted for the stay.
Rick hasen at Election Law Blog adds, Breaking: Supreme Court Halts AZ “Ballot Harvesting,” With No Noted Dissents:
So Arizona went to Justice Kennedy, Justice Kennedy had Bush v. Gore-timing for expedited briefing, referred it to the whole court, and the entire court, without noted dissent, stayed the injunction issued by the Ninth Circuit which temporarily blocked the law banning ballot harvesting.
I think this is a reflection of the Purcell Principle in action—you really cannot make last minute changes to the election rules before this Supreme Court. The Justices seem to agree. Plus, how would it have looked for a Supreme Court dividing 4-4 on the eve of the election when the Court itself is one of the main issues.
More from Chris Geidner on the Purcell Principle. The Supreme Court Basically Told Judges To Stop Messing With Voting Laws Before The Election:
The Supreme Court made clear that it was making no ruling on whether the law against so-called “ballot harvesting” ultimately should be upheld (the 9th Circuit is due to hold arguments over the law in January). Saturday’s order was only on the preliminary injunction of the law that had been issued Friday by the appeals court.
The order also is not about stopping potential election day challenges relating to polling places or voting hours — calls on the field during the game, to analogize. It is focused on stopping challenges to the underlying rules of the game after the game — i.e., voting — has already begun in earnest in many states across the nation.
For election law lawyers, it is a message that the so-called “Purcell principle” — referring to an earlier Supreme Court election law case — remains in effect. The Purcell principle is, as law professor Rick Hasen explains it, “the idea that courts should not issue orders which change election rules in the period just before the election.” Such late changes in the way elections are carried out are disfavored because they risk causing confusion to voters, candidates, election law administrators, and courts.
The spirit motivating the Purcell principle became abundantly clear on Saturday after the Supreme Court issued its order, when people immediately began asking what would happen to ballots that were collected in between the 9th Circuit’s Friday order and the Supreme Court’s Saturday order, or what would happen to ballots collected after the 9th Circuit’s order but not yet submitted by the time of the Supreme Court’s order. The Arizona Secretary of State quickly attempted to stop any confusion on that point, announcing that ballots collected during the period when the law was enjoined could be submitted on Monday and will be counted.
To the larger point, though, the fact that Saturday’s Supreme Court order came with no written dissent and came so soon — within three hours — after the Democrats filed their brief supporting the 9th Circuit’s injunction made clear that, at least on this point of stopping late election law challenges, the eight justices are willing to present a united front.