A divided federal appeals court dealt a victory to Arizona Democrats Friday by agreeing to put on hold the state’s so called “ballot collection” law.
Democrats had argued that the state law could disenfranchise thousands of voters, especially in minority communities that rely upon neighbors and activists to collect and hand deliver the ballots.
The 6-5 ruling by the 9th US Circuit Court of Appeals reverses an opinion by a smaller number of judges on the appeals court who had ruled in favor of the law last week.
Arizona Secretary of State Michele Reagan will appeal the decision to the Supreme Court.
“We are disappointed in this decision as it will confuse voters and depress turnout. We believe the three judge panel correctly decided this matter and are currently working with counsel to draft an appeal to the Supreme Court asking them to stay the order of the full 9th circuit,” Reagan said in a statement.
In Friday’s order, the judges granted a preliminary injunction of the law pending appeal. The majority said it recognized that it was blocking the law close to the election but said that its injunction would not affect the state’s “election processes or machinery.”
“The only effect is on the third party ballot collectors, whose efforts to collect legitimate ballots will not be criminalized, pending our review,” the majority said.
The court said that it was “preserving the status quo for this election, and we will consider the challenge to the new legislation” after the election.
“We are thrilled that the election process in Arizona has just gotten even easier,” said Spencer G. Scharff, Voter Protection Director of the Arizona Democratic Party. “Having more options to turn in your ballot ensures that more people take part in the democratic process, and that is better for our state.”
Joshua A. Douglas, an election law expert at the University of Kentucky College of Law, thinks the case could make it to the Supreme Court before Election Day.
“The state could appeal this order to the Supreme Court, arguing that the 9th Circuit improperly changed the rules so close to the election,” he said. “This could be a close vote, I could see several justices worrying about the impact of the law while others will be more concerned with the timing issues.”
In Arizona, voters can request an early ballot to be sent to them before the election. The voters can then mail it back or drop it off at a polling locations as long as it is received by 7pm on Election Night.
Democrats in the state argued that thousands — particularly those in towns near the border and in Native American reservations without reliable mail service — have relied upon having their ballot collected by organizers in past years to ensure the ballots are received on time.
“Over the years, many voters have adopted the practice of dropping off their ballots at local Democratic Party offices, which may be closer than their polling place, so that their ballots could be turned in by party officials, staff or volunteers,” said Scharff.
“This practice, which H.B. 2023 criminalizes, is especially prevalent in communities that have experienced state-sanctioned discrimination and thus prefer to entrust party officials to ensure that their ballots are counted,” he said.
The law makes it a felony, punishable by a year in jail and $150,000 to knowingly collect “voted or unvoted early ballots” from another person. It provides for an exception for family members or caregivers.
In a brief filed by the Arizona Republican Party and joined by the state attorney general, lawyers called the law a “well-reasoned” safeguard to a “fair and transparent election.”
They argued that the challengers “have not and cannot meet their burden to overcome the important regulatory interests protecting voters and ensuring an orderly and fair election process.”
They said the law was in effect for the primary election and that the challengers could not identify “a single voter whose ability to vote was burdened by the law.”