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Arizona GOP goes to court again to kill on-demand early voting

Posted 2/5/23

The Arizona Republican Party is making a last-ditch effort to get a court to do what lawmakers have so far refused: Kill on-demand early voting in the state.

Attorney Alexander Kolodin is trying …

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Arizona GOP goes to court again to kill on-demand early voting


The Arizona Republican Party is making a last-ditch effort to get a court to do what lawmakers have so far refused: Disallow on-demand early voting in the state.

Attorney Alexander Kolodin is trying to get the state Supreme Court to rule that letting people 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.''

Kolodin does not dispute that people voting from home have the ability to conceal their choices from anyone else. But that, he said, is not enough.

"The Legislature must also enact procedures by which voters are unable to mark their ballots in the presence of others even if individual voters desire to waive the secrecy of their own ballots,'' Kolodin told the justices.

He made similar arguments to both a trial judge and, when that failed, to the state Court of Appeals which was no more sympathetic. Now, the state's high court is his only remaining remedy.

Arizona has had some form of early voting almost since the first days of statehood.

Just six years after the state constitution - and it's requirement for voting in secret was adopted - lawmakers allowed some people who could not get to the polls , mostly those in the military, an opportunity to vote early.

Subsequent measures expanded early voting, applying it to those who would be out of their voting precinct and those who were 65 and older. The GOP had challenged these but gave up.

What remains is a 1991 law that permits anyone to request an early ballot, with no requirement to provide an excuse.

The practice was instituted in 1992 and continues to this day.

But it has only been since the 2020 election - and claims by Donald Trump about voting by mail being an opportunity for fraud - that Republicans are having second thoughts. That same theme was repeated this past election, with both gubernatorial hopeful Kari Lake and Mark Finchem, running for secretary of state, suggesting that unrestricted mail-in voting was ripe for abuse.

It was during that campaign the state party filed suit.

A trial judge threw out the case.

Kolodin had no better luck at the Court of Appeals which ruled earlier this year that there are sufficient safeguards built into Arizona law to ensure that each voter's choices are kept confidential as the Arizona Constitution requires.

In his petition to the Supreme Court, Kolodin said the lower court judges were missing the point.

"Both courts failed to recognize that, in order to preserve secrecy, it is not enough for the Legislature to merely direct voters to fill out their ballots in secret,'' he said. What's needed, Kolodin said, is an assurance that marking the ballots in secret is the only way they can be filled out.

What that requires, Kolodin contends is something like a restricted zone to be secured around the mail-in voter or the presence of an election official "to ensure voters are not only able to but must mark their ballots in secrecy.'' And that, he said, means being able to do so freely.

"The statutes fail to preserve secrecy, meaning that voters can still be coerced, intimidated, or bribed to vote a certain way,'' Kolodin said.

Where that can't occur, he said, 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. And Kolodin said this state-mandated zone of protection - which by definition cannot occur when people fill out ballots elsewhere - is necessary.

"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 said.

But Judge Cynthia Bailey, writing for the unanimous three-judge panel of the Court of Appeals, rejected the argument that the framers of the constitution wanted any sort of "restricted zone'' around voters.

"The Secrecy Clause's meaning is clear: When providing for voting by ballot or any other method, the legislature must uphold voters' ability to conceal their choices,'' she wrote. "The constitution does not mandate any particular method for preserving secrecy in voting.''

And Bailey had another point.

She said the Legislature is "free to adopt the more stringent requirements'' that the state GOP wants. "But it is not constitutionally required to do so,'' Bailey said.

Several proposals were introduced in the 2022 legislative session to do just that. But none of them even got a hearing.

There are no measures advancing so far this session.

The Supreme Court has set no date to consider Kolodin's arguments.