PHOENIX — Attorney General Mark Brnovich is asking a federal court to throw out a lawsuit challenging a new law that will kick some people off what has been the “permanent early voting list.”
In new court filings, Assistant Attorney General Drew Ensign, writing on Brnovich’s behalf, argues that the new law, approved earlier this year, imposes only a “minimal” burden on voters.
Ensign does not specifically address statistics presented by challengers that the change will have a disparate impact on minorities. Instead, he told U.S. District Court Judge Dominic Lanza that these claims are irrelevant, saying there is no proof that was the intent of the Republican-controlled legislature — even if that is what the numbers may show.
And Ensign said even if the comments of Rep. John Kavanagh, R-Fountain Hills, could be seen as showing racial intent — a point Ensign is not conceding — he said that is irrelevant.
No date has been set for a hearing.
“The question is not the purpose of Rep. Kavanagh but the purpose of the legislature as a whole,” he wrote. And he said the challengers offer “essentially nothing” to prove that point.
Until now, anyone who has signed up for the permanent early voting list automatically gets a ballot in the mail ahead of all elections. Only when a person is removed from the list of registered voters does that end.
The new law spells out that if someone does not return an early ballot in at least one of four prior elections — meaning a primary and a general election in two successive years — that person is dropped from what would no longer be called the permanent early voting list.
They still could sign up again to get early ballots. And they could still go directly to the polls on Election Day.
“The Voter Purge Law imposes a severe burden on Arizona voters attempting to exercise their right to vote, particularly the elderly, indigent Arizonans, students, and people of color,” wrote attorney Rodney Ott when he filed suit. He represents a coalition challenging the state.
Ott cited a study that shows that Black and Hispanic Americans are more likely to be “intermittent or rare voters compared to white voters.” Ditto, he said, of people with lower income.
Using figures from the 2020 election, Ott said about 71% of all registered voters are white. But if this law had been in effect, they would have constituted just 54% of those removed from the permanent early voting list.
“By contrast, Latinos are 19% of registered voters, but would be 33% or removals,” Ott wrote.
“Black Arizonans are 4% of registered voters but would be 5% of removals,” he continued. “And Native Americans are 0.9% of registered voters but would be 1.3% of removals.”
Ensign told Lanza that none of this creates significant hurdles.
He said even if people don’t use their mail-in ballot once every four years they can still remain on the permanent early voting list simply by returning a mailed notice asking if that's what they want. And even if they miss that notice, Ensign said, they can sign up again, either on a county website or returning a form by mail.
“None of this is remotely burdensome,” he said.
Ensign also said that, even with the new law, it still remains easier to vote in Arizona than most other states.
He said only five states have permanent vote-by-mail lists, with another five conducting all their elections by mail. Another 10 have such a list, but one confined solely to elderly voters or those with disabilities.
“A full 30 states have no early voting list for anyone,” Ensign said.
He also argued that culling the list of anyone who has shown little interest in early voting would save taxpayer dollars. And then, Ensign said, there is the state's interest in preventing fraud.
“Arizona can reasonably conclude that failure to vote in a four-year period and non-response to a notice is substantial evidence that a voter no longer lives at that address,” he told the judge. “There is an obvious election integrity concern with sending a ballot to an address where the voter no longer resides — and someone else likely does.”
Then there’s that issue of what Ensign says is the lack of legislative intent to discriminate, even if the numbers cited by Ott bear out.
In filing suit, challengers cite a statement made by Kavanagh, a supporter of the legislative changes, made to CNN.
“Quantity is important, but we have to look at the quality of votes as well,” he said earlier this year. But Ensign said none of that suggests a discriminatory purpose.
“In fact, a straightforward reading of Rep. Kavanagh's statement suggests a non-racially discriminatory motive,” he said, saying the lawmaker clarified his comments to say that he was speaking about a lack of informed voters.
And even if Kavanagh’s comments could be taken as showing a discriminatory purpose, Ensign said that cannot be extrapolated out to show that was the motive of all the lawmakers who voted to make the change.
In filing suit, Ott contends that lawmakers enacted the changes because they were unhappy with the results of the 2020 election.
“Arizonans of color were able to elect candidates of choice for president and vice president,” he said, with 59% of voters of color voting for Joe Biden and Kamala Harris, including 61% of Latinos. And Ott said 80% of the votes cast in the Arizona portion of the Navajo and Hopi tribes were for the Biden-Harris ticket.
“The historic turnout in 2020 ought to have been cause for celebration,” he said. “However, some officials in Arizona and around the country chose instead to weaponize these figures, spreading false and discredited theories that the 2020 elections were affected by widespread voter fraud.”
The plaintiffs in the case include Mi Familia Vota, Arizona Coalition for Change, Living United for Change in Arizona, and League of Conservation Voters.