Open Season on Ballot Harvesting in Arizona? 9th Circuit Court of Appeals Considers a Reversal
January 6, 2020
By: Kristin Palmason
A controversial piece of election legislation (HB 2023) enacted in Arizona in 2016 made ballot collecting a class 6 felony. Ballot collection, known as “ballot harvesting” is the practice of collecting completed ballots from voters and hand delivering them to be counted. Proponents of the practice say it is a valuable service that benefits voters in need of assistance to ensure that their vote is counted, while critics decry the practice as ripe for fraud. This issue is particularly salient in Arizona, where approximately 80% of voters receive their ballot in the mail (which can then be returned via mail or delivered to the county by hand).
In 2016, promptly after HB 2023 was enacted, the Democratic National Committee (DNC) brought an action (all court filings available here) against the State of Arizona and sought separate preliminary injunctions, both of which were denied, appealed, and denied again in a flurry of litigation before the November 2016 election. On October 4, the district court denied the motion for a stay and injunction pending appeal for the HB 2023 claim, and the DNC filed an emergency motion for an injunction pending appeal and for an expedited appeal in the 9th Circuit. On October 11, the 9th Circuit denied the emergency motion. On October 31, the DNC filed a petition for rehearing en banc, which was granted, and on November 4, four days before the Presidential election, the 9th Circuit en banc, granted an injunction pending appeal, noting that they were “[P]reserving the status quo for this election…”. In response, on that same day, the State brought an emergency application for stay of injunction pending appeal to the Supreme Court, arguing that the new law “[W]ill not actually have a discriminatory impact or anything more than a minimal burden on the right to vote.” On November 5, the application for say was granted by the Supreme Court, and the new legislation was left in force for the November 8 Presidential election.
The DNC’s case proceeded in district court and challenged the constitutionality of HB 2023 on the grounds that it violated the First, and Fourteenth Amendments, §2 of the Voting Rights Act and 42 U.S.C. § 1983. The DNC argued that 1) HB 2023 violated §2 of the Voting Rights Act by imposing a discriminatory burden on the right to vote and providing less opportunity for minorities to elect candidates of their choice, 2) HB 2023 violated the Fourteenth Amendment and 42 U.S.C. § 1983 by imposing an undue burden on the right to vote, 3) HB 2023 violated the Fourteenth Amendment and 42 U.S.C. § 1983 through disparate treatment, 4) HB 2023 violated the First Amendment, and 42 U.S.C. § 1983 by prohibiting protected speech and expression, and 5) HB 2023 violated the First and Fourteenth Amendments, and 42 U.S.C. § 1983 by intending to suppress Democratic votes.
The district court, after a bench trial, held that HB 2023 did not violate the First and Fourteenth Amendments as the burden on voters was minimal and “adequately designed” to serve Arizona’s regulatory interest. The district court also held that the DNC failed to demonstrate that HB 2023 violated the Fifteenth Amendment as they did not meet their burden of showing that HB 2023 was enacted with discriminatory intent, and that the DNC also did not meet its burden to show that minority voters were not able to elect candidates of their choice to prove a violation of §2 of the Voting Rights Act. The court declined to apply strict scrutiny to HB 2023 as the burden on voters was minimal; the court did not require the state to employ the least-restrictive means possible and instead accepted the district court’s analysis requiring only a “reasonable means”.
The DNC immediately appealed to the Ninth Circuit Court of Appeals, where a divided court upheld the rulings from the district court. In a notable dissent, Chief Judge Thomas wrote that HB 2023 imposed an unlawful discriminatory burden on minority voters, including African Americans, Hispanics, and in particular Native Americans living in rural Arizona without mail service. Judge Thomas described the legislation as “a solution in search of a problem”, as there was no direct evidence of voter fraud (the stated motive for the legislation) committed via ballot collection.
The DNC petitioned for a rehearing en banc in September 2018, and on January 2, 2019, the Ninth Circuit Court of Appeals granted the request. The case was argued on March 27 of this year, but the court has not yet issued a decision.
The litigation in the 9th Circuit is timely as, despite the national attention on alleged in-person voter fraud, election experts agree that fraud is more likely to occur via absentee ballots. A recent and stunning example is the 2018 midterm elections in the Ninth District in North Carolina, where the Board of Elections ordered a new election after hearing testimony highlighting illegal practices in Mark Harris’ campaign. The Harris campaign, which won the election by an extremely narrow margin of less than 1000 votes, hired a consultant who is accused of collecting and tampering with absentee ballots including paying operatives to fill out ballots and gather voter’s signatures.