PHOENIX – The Arizona Supreme Court has rejected arguments by a Scottsdale lawmaker who wanted justices to declare illegal early voting in the state.
Th court on Friday rejected arguments by Republican Alexander Kolodin that allowing people to fill out their ballots at their kitchen tables — or anywhere else — runs afoul of a constitutional provision that requires “secrecy in voting shall be preserved.”
There was no explanation about the decision.
But in refusing to consider the arguments Kolodin presented for the state GOP, the justices left intact an earlier decision by the state Court of Appeals that there are sufficient safeguards built into Arizona law to ensure that each voter’s choices are kept confidential.
The decision leaves no basis for state Republicans to seek review by the U.S. Supreme Court.
Kolodin, in seeking to have the Supreme Court void on-demand early ballots, did not discuss recent presidential or gubernatorial election results. Instead, he focused on that constitutional requirement “that secrecy in voting shall be preserved.”
Strictly speaking, Kolodin was not arguing that people can’t have a ballot sent to them by mail.
What he told the justices, though, is that the constitutionally mandated secrecy can be maintained only if an official is present when someone casts a ballot — even from their own kitchen — and that the official “then watches the voter enclose and seal the ballot in an envelope.”
Kolodin said that can’t happen if someone is filling out a ballot at a kitchen table and sealing it there.
He said that raises the possibility that someone else is present and watching. And Kolodin said it also opens the possibility that someone actually could be coerced — or maybe even paid — to vote a certain way.
“Many voters are simply unable to protect themselves and can only vote freely in a system where they are not forced (e.g. in the case of domestic violence) to request a mail-in ballot only to be coerced and intimidated to vote in a certain way when marking their ballots,” he argued.
The constitutional solution, Kolodin said, is to ensure that can’t occur.
And the only place that can’t happen, he argued, is at polling places, where individuals are protected by everything from a 75-foot perimeter to keep out those who are not voting, to areas where they can fill out their ballots in secret, with no one looking over their shoulder to see who they support.
But the Court of Appeals ruled — and the Supreme Court has now left undisturbed — that nothing in the Arizona Constitution about voting secrecy requires what Kolodin called a “restricted zone.”
Despite the court roadblocks, foes of the practice do have a remedy: They could ask the Republican-controlled Legislature repeal the 1991 law that created no-excuse early voting.
But the politics of that become difficult given the broad popularity of being able to vote from home. More than eight out of 10 ballots cast that way in the 2022 election.
Arizona has had some form of early voting almost since the first days of statehood. But that was limited to special circumstances, ranging from military serving overseas to people who were incapacitated.
In 1991, however, state lawmakers approved no-excuse early voting, allowing anyone to request a ballot be sent to them which they can fill out at home — or anywhere — and either return it by mail, put in a drop box or take directly to a polling location.
None of that was controversial until after the 2020 election where Donald Trump lost his bid for a new term. While he outpolled Democrat Joe Biden among voters who went to the polls on election day, Biden had an even larger edge among those who voted early.
The same pattern held true in 2022, with Republican Kari Lake having a better than 2-1 margin over Democrat Katie Hobbs in Election Day ballots. But Hobbs more than made up for that with a strong edge among early ballots, ending up with a 17,117-vote victory.
And arguments about early ballots, ranging from the chain of custody to the signature verification process, remain front and center eight months later in Lake’s ongoing bid to overturn the results despite court rulings to the contrary.
We’d like to invite our readers to submit their civil comments, pro or con, on this issue. Email AZOpinions@iniusa.org.