The Arizona Supreme Court won’t quash the method of voting used by nearly 90% of state residents, at least not now.
In a brief order late Tuesday, the justices rejected a bid by the Arizona Republican Party to declare that early voting is unconstitutional. They rejected arguments by an attorney for the party that the issue is strictly legal and ripe for them to decide, without presenting any testimony or evidence.
But the order, signed by Chief Justice Robert Brutinel, does not end the matter.
He said the challengers are free to refile the case in Maricopa County Superior Court where they can provide some factual basis for their allegations. Only after there is a decision at the trial court — and the judge there makes some findings — would it be appropriate for the high court to review the issue.
Central to the fight is the contention by attorney Alexander Kolodin that the only form of voting specifically authorized by the framers of the state constitution is in person, and on Election Day. What that means, he said, is anything else — including the current system of no-excuse early ballots created by the legislature in 1991 — is illegal.
Kolodin had no better luck with his alternate legal theory that even if early voting is allowed, the state is required to return to the way the situation was prior to 1991.
That still allowed people to get early ballots. But they also had to provide some proof they needed it, like being away from their voting precinct on Election Day or a physical disability.
Kolodin said that, at least, would provide more security over early ballots than the current system.
The lawsuit has drawn opposition not just from Democratic Secretary of State Katie Hobbs, who is the state’s top election official, but also from Republican Gov. Doug Ducey. He called the legal effort “ill-conceived.”
“It would undo the work of many Republican governors and secretaries of state over the past several decades,” he told reporters last month. And Ducey said the lawsuit is “poorly crafted.”
Kolodin had no better luck with his bid to get the justices to rule that the use of drop boxes for ballots is illegal.
There was no immediate response from Kolodin.
The decision by the justices not to decide the case on strictly legal arguments is in line with a legal brief filed by the Coconino County Board of Supervisors. County Attorney William Ring said they have to consider the rights of those who could lose their right to cast early ballots.
“This court must justly consider whether action upon the petition (by the Arizona Republican Party) can or will so interfere as to prevent the free exercise of the right of suffrage,” he told the court. And that, Ring wrote, means the justices have to consider “the facts that measure and gauge the personal impact upon the content of individual expectations that are assured by (the Arizona Constitution).”
But GOP gubernatorial hopeful Kari Lake, in her own friend of the court filing, urged the justices to take the case and void early voting.
“Absent an actual reason why the voter cannot vote at the polls, voting occurs at the polls on Election Day, not election Month, wrote Tim La Sota, her attorney. “And a ‘reason’ does not include that the able-bodied, physically present voters simply does not want to take the minimally burdensome step of presenting him or herself at a polling place on Election Day.”
Lake has been among those who has denied that Joe Biden won the popular vote in Arizona, with one of the theories being irregularities in early voting and fraudulent ballots.
The practice, however, is extremely popular among Arizonans: A survey by OH Predictive Insights found that just one out of every 10 registered voters wants to get rid of early ballots in Arizona.
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