Arizona election officials face lawsuit over ballot deadline

By Howard Fischer, Capitol Media Services
Posted 11/27/19

PHOENIX — Saying voters are being disenfranchised, two groups are asking a federal judge to void an Arizona law that says ballots have to be received by county officials by 7 p.m. on Election Day to be counted.

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Arizona election officials face lawsuit over ballot deadline


PHOENIX — Saying voters are being disenfranchised, two groups are asking a federal judge to void an Arizona law that says ballots have to be received by county officials by 7 p.m. on Election Day to be counted.

In new legal papers filed here Tuesday, attorney Sarah Gonski said the state has “no legitimate interest’’ in enforcing the deadline, particularly when the state is promoting that people cast their ballot by mail.

“Although Arizona may certainly set a reasonable deadline to receive ballots to ensure the finality of election results, the current Election Day receipt deadline is unreasonable and disenfranchising,’’ she wrote. “It is contrary to voters’ reasonable expectations, necessitates that ballots be cast far earlier than they need to be, and is poorly communicated to voters.”

What Ms. Gonski told Judge Dominic Lanza would be reasonable is to require that ballots be postmarked by the 7 p.m. deadline and received within five business days afterwards.

“After all, Arizona need not complete its total vote count until 20 days after Election Day,” she said.

Ms. Gonski said this isn’t just an academic question.

She specifically cited the 2016 presidential preference primary where more than 72,000 Republicans cast a ballot saying they wanted Marco Rubio to be the GOP nominee.

Only thing was that he quit the race days before. She said it was that requirement to have ballots in by that 7 p.m. Election Day deadline that caused so many people to “waste their vote on a ghost candidate.”

But Ms. Gonski also cited figures she said prove that minority voters, particularly those in rural counties, are five to six times more likely than Anglos to have their early ballots uncounted because they did not arrive on time. And she said at least some of the blame for that is “traceable to Arizona’s long history of discrimination against minority voters.”

“Discrimination in education has led to persistent gaps that have left these minority voters less educated than their white counterparts, which makes them less likely to be aware of the Election Day receipt deadline,” she wrote.

At least part of Ms. Gonski’s lawsuit relies on that disproportionate effect to claim the deadline violates the Voting Rights Act. It generally prohibits states from enacting laws that impair the rights of minorities to vote.

But she also claims that the law is an impermissible burden on the right of all people to vote.

Ms. Gonski is representing two groups.

One is Voto Latino which she said is a nonprofit group that is involved in trying to register Latinos to vote. The other is Priorities USA which she describes as a “nonprofit, voter-centric progressive advocacy and service organization.”

It names Secretary of State Katie Hobbs, as the state’s chief election officer, as defendant. An aide to Ms. Hobbs said she was studying the lawsuit but does not comment about ongoing legal matters.

Central to the litigation is the wide use of mail ballots, with about 1.9 million votes cast that way in the 2018 election out of about 2.4 million ballots cast.

Ms. Gonski said while people who get early ballots can bring them to a polling location on Election Day, about 90 percent of people who voted with a mail ballot returned it through the U.S. postal service. She said that personal drop-off option can be “more time-consuming and burdensome” for rural voters who often live many miles from a drop-off location, as well as Hispanic and Latino voters who she said have difficulty obtaining transportation or leaving work during the hours when county recorders’ offices are open.

And Ms. Gonski said the situation is complicated by a 2016 law that now makes it a crime for volunteers and others to help collect early ballots. Ms. Gonski’s law firm has been involved in separate legal efforts — so far unsuccessful — to void that ban on what has been called “ballot harvesting.”