By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — A group that backs additional restrictions on voting wants a judge to outlaw the use of “drop boxes” that can make it easier for some people to return their early ballots.

Attorneys for the Free Enterprise Club say Arizona law provides for only certain ways a ballot can be submitted. That means personal delivery to county election offices, dropping them in the mail or returning them to any polling place.

But the Elections Procedures Manual, prepared by the Secretary of State’s Office, specifically permits counties to set up unmonitored drop boxes wherever they want and then permit “retrievers” to collect them to have them tallied. And some counties are following suit.

Tim La Sota, representing the organization, acknowledged the manual has the force of law. In fact, violations are a criminal misdemeanor.

He said, though, that manual cannot allow things that are not specifically authorized by the Legislature. And that, said La Sota, includes drop boxes.

So now he wants a Yavapai County Superior Court judge to declare the provision of the manual illegal and bar elections officials across the state from using them.

La Sota and the Free Enterprise Club get to file in Yavapai County because the lawsuit also is filed in the name of Mary Kay Ruwette listed as a resident and registered voter in that county.

That choice may not be random.

It was John Napper, the presiding judge of Yavapai County, who ruled just last month in another case, also filed by the Free Enterprise Club, that a different provision in the Elections Procedures Manual — this one about how officials can compare signatures on early ballots with other documents — apparently violates state law. There is no indication at this point, though, which judge will hear the new case.

But an aide to Secretary of State Adrian Fontes said the Free Enterprise Club is legally wrong.

Paul Smith-Leonard said state law requires his boss — or whoever holds that office — to prescribe rules not only to achieve and maintain correctness, impartiality, uniformity and correctness but also for collecting ballots.

“The drop boxes are used by the county recorders to collect early ballots,” he said. Beyond that, Smith-Leonard said drop boxes comply with the Americans with Disabilities Act “and provide a reasonable accommodation to voters with a disability.”

The legal battle is an outgrowth of claims by some about the inherent potential for fraud with mail-in ballots. That has taken several forms, including an unsuccessful bid by the Arizona Republican Party to void a 1991 law that allows anyone to vote early under the premise that it does not ensure voter secrecy.

La Sota said allowing unmonitored drop boxes, aside from being illegal, also are a potential source of problems.

He acknowledged people legally can drop their ballots in boxes — specifically mail boxes.

What makes that acceptable, La Sota said, is there are federal laws for tampering with or destroying mail. He also said the U.S. Postal Service scans each piece of mail, creating a record.

And La Sota also said it is a less-likely target for those who might seek to tamper.

“From the outside, it is impossible to determine whether a particular mailbox contains early voted ballots,” he wrote. “A person seeking to interfere with ballots being returned by mail would have very little certainty that a particular mailbox contains any ballots at all.”

By contrast, La Sota said, a drop box has only completed ballots.

“From the outside, one can know with certainty that the contents of a ballot drop-box are completed ballots, likely a significant number of them,” he said.

But La Sota cited no instances of drop boxes being broken into or any other instance.

What has happened, he said, is voter intimidation.

Last year groups got U.S. District Court Judge Michael Liburdi to issue a restraining order to block certain activities around drop boxes. That included photographing anyone taking videos of those depositing their ballots, posting any videos or personal information online suggesting these people were engaged in “ballot harvesting,” and requiring anyone openly carrying a weapon or wearing body armor to remain at least 250 feet from any drop box.

La Sota said there is no risk of voter intimidation at mail collection boxes “because it is nearly impossible to tell whether any particular person depositing mail is depositing a voted ballot.” And he said intimidation can’t happen when people return ballots to election officers because of the presence of government officials.

If those arguments don’t convince the judge who will hear the case, La Sota has another: arbitrary and disparate treatment of voters depending on where they live.

For instance, he said, La Paz County has just one drop box while there are 16 in Coconino County. And there are just 19 in Yavapai County, La Sota said, despite the fact that it has 100,000 more residents than Coconino.

Adding to that, said La Sota, is the variety of places where counties have installed these drop boxes.

In Coconino, he said, that includes a bookstore and humane society. Gila County has one at a church. And Yavapai County has drop boxes at libraries, community centers, fire departments, “and, amazingly enough, United States Post Offices — presumably mere feet away from a mailbox where voters may legally return their ballots.”

This isn’t the first foray into voting and election matters for the Free Enterprise Club.

It worked to have Republican lawmakers put a measure on the 2022 ballot to require those using early ballots to not just sign them but include a birth date and a state-issued number or the last four digits of a Social Security number. Proposition 309 also would have imposed new identification requirements on those who show up at a polling location.

Voters rejected it with 51.8% in opposition.

The organization also is trying to void something voters did approve last year: Requiring public disclosure of the true source of funds spent to influence elections. Proposition 211, which passed by a margin of nearly 3-1, is designed to end the ability of donors to hide their identity by giving cash to support or oppose candidates or ballot measures through other organizations.

A trial judge threw out the challenge in June and the case is now on appeal.

But the Free Enterprise Club did get the Arizona Supreme Court to rule voters have no constitutional right to block lawmakers from cutting — or even eliminating — taxes, a move that thwarted a 2022 bid to give Arizonans the last word on $1.9 billion in tax cuts enacted by the Republican-controlled Legislature.