UPDATE: Arizona Asks 9th Circuit To Stay Its "Ballot Harvesting" Ban Decision Pending Appeal To Supreme Court

UPDATE: 1/31, 4:20pm: Noting that ballots for the Presidential Preference Election begin going out in the mail TOMORROW, the Arizona Attorney General's Office has asked the Ninth Circuit to immediately stay its Monday ruling on the "ballot harvesting" ban.

The stay request precedes the Attorney General heading to the U.S. Supreme Court to appeal the 7-4 opinion finding that Arizona's ban on third parties gathering completed ballots violates the Voting Rights Act and the Constitution. The opinion also found that Arizona's policy of "wholly discarding" all ballots cast outside of the voter's precinct discriminates against minorities.

The AG's brief notes that Arizona's law is on much stronger footing than when the Supreme Court last put a stay on it just before the 2016 election day, because of the ballot collection fraud case in North Carolina and the Arizona bench trial that ended in the state's favor.

UPDATE: Arizona Will Appeal To U.S. Supreme Court To Rescue "Ballot Harvesting" Ban
Arizona Attorney General Mark Brnovich wasted no time in announcing that the state will ask the U.S. Supreme Court to restore the so-called ballot harvesting ban. An en banc panel of the Ninth Circuit Court of Appeals ruled yesterday that the 2016 law violated the Voting Rights Act and the Constitution because it had discriminatory intent and impacts.

Brnovich tells "AZ Law" that “It’s surprising the Ninth Circuit took the unusual step of overruling its

own decision from 2018. I have a duty to defend the law. Our office will appeal to the Supreme Court and continue to protect the integrity of our elections.”

The nominal defendant in the case is (now)-Secretary of State Katie Hobbs, and she praised yesterday's ruling. In her statement to "AZ Law", Hobbs called the "victory" one that "facilitates participation in our democracy." She also noted that she had voted against the law as a State Senator in 2016 because "created unnecessary barriers to the ballot box. In its decision, the court considered the lack of any evidence supporting a need for this law. It is my hope that our state does not decide to spend additional taxpayer dollars defending it." (Of course, that "hope" was before she heard the decision from Brnovich.)

So-called ballot harvesting is where groups (generally) visit voters' homes, collect their completed ballots and ensure that they reach the County Elections Department. Arizona banned that practice in 2016, and the dissenting judges noted the case in North Carolina where a Republican operative changed people's ballots before delivering them.

Sen. Michelle Ugenti-Rita (R-LD23) authored Arizona's law, and she had a more succinct reaction when KJZZ asked her about yesterday's decision: "Bull hockey!"

Well-known election law Professor Rick Hasen "strongly suspects" that the Supreme Court will choose to review this decision.

Hasen notes that the Ninth Circuit's reasoning could have further impacts on Arizona election laws, as well: "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."

In 2013, the U.S. Supreme Court removed Voting Rights Act preclearance requirements for Arizona and some other jurisdictions. The Shelby County decision was by a 5-4 majority.

Hasen explains to "AZ Law", "If Arizona were put back under preclearance, it would not be able to make changes in its voting rules without proving that the changes would not make protected minority voters worse off. This would be significant protection against laws that could unduly burden voting rights."

Professor Hasen's Election Meltdown: Dirty Tricks, Distrust and the Threat To American Democracy hits the bookstores next week.*

* A portion of the proceeds from the purchase of the book through this link will benefit the community outreach programs of Tempe's Temple Emanuel.

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