PHOENIX — Millions of Arizonans will not lose the right to vote early, at least not now if ever.
In a five-page ruling Monday, Mohave County Superior Court Judge Lee Jantzen rejected claims by the Arizona Republican Party that lawmakers violated the state constitution in 1991 when they agreed to let anyone request the right to vote by mail.
Jantzen acknowledged Alexander Kolodin, attorney for the GOP, and party Chair Kelli Ward presented examples of “bad actors” violating laws deal with early voting. That included instances in Yuma County where a woman last week pleaded guilty to collecting the early ballots of others and, in some cases, marking how they should be voted.
“These example are concerning but they do not address the issue before the court: the constitutionality of the statutes in question,” the judge wrote.
“Furthermore, they do not show a pattern of conduct so egregious as to undermine the entire system of no-excuse mail-in voting as provided by the Arizona Legislature,” he continued.
“Enforcement mechanisms exist within the statutes to punish those that do not abide by the statutes.”
Jantzen also pointed out state and local election officials have been administering the system for more than 30 years.
“The laws are far from perfect and nobody anticipated 30 years ago that approximately 90% of Arizona voters would vote by mail during a pandemic,” the judge wrote. In 2020 nearly 3 million Arizonans voted early.
“But these laws are NOT in violation of the Arizona Constitution,” he said.
And Jantzen specifically rejected claims by Kolodin that the people who crafted the 1912 Arizona Constitution never intended for lawmakers to pass measures to allow widespread early voting.
“They are not inapposite of the framers of the constitution who emphasized the right to suffrage for Arizona citizens and that the voters’ ballots be secret,” he said. “The laws passed by the Arizona legislature in 1991 further those goals.”
Kolodin said it is “likely” there will be an appeal. In fact, he told Capitol Media Services that Monday’s ruling that early voting is constitutional is not really a surprise.
“What superior court judge wants to say otherwise and take that responsibility onto himself,” he said. “I can’t think of many judges who would.”
But Kolodin said he and state GOP officials will have to analyze the ruling “and make our determination” before deciding what to do next.
Time is not on his side.
His lawsuit seeks to void no-excuse early voting for the Nov. 8 general election.
Such a ruling would require county election officials to set up dozens, if not hundreds, of new polling places. And county officials have said in prepared affidavits it would be near impossible to do that for this year.
The Arizona Constitution clearly gives lawmakers the power to decide voting methods.
Kolodin, however, pointed out it also says that “secrecy in voting shall be preserved.” And he said that’s not possible if ballots are mailed to millions of Arizonans, all of whom could be influenced or pressured to vote a certain way, perhaps by employers or union organizers looking over their shoulder while they fill them out.
Jantzen, however, wasn’t buying it.
He pointed out the first law allowing people to vote by mail was approved in 1918, just six years after the state constitution was adopted. It allowed some people who could not get to the polls, mostly those in the military, an opportunity to vote.
“These laws mandated the mail-in voter keep his ballot private,” the judge said.
“So the legislature had the right to write election laws in 1918 that maintained secrecy,” he continued. “And they did so.”
There were several interim measures to expand early voting, applying it to those who would be out of their voting precinct and those who were 65 and older. Then, in 1991, lawmakers approved the no-excuse mail-in voting, effective with the 1992 election.
Jantzen said that 1991 law, like earlier versions that Kolodin did not challenge, has procedural safeguards to prevent ballot tampering “and, more importantly, to the question before this court, to maintain secrecy in voting.”
For example, he said, state law requires ballot return envelopes be designed so they do not reveal the voter’s selections or political party affiliation. It also requires they be “tamper evident when properly sealed.”
Another provision spells out how the early ballot has to be folded and put into the envelope to conceal the choices.
Potentially more significant, Jantzen was not impressed by Kolodin’s argument that the only way people can vote early is if a county election official brings the ballot to someone’s home, stands there while the person marks it, and then takes it back.
Kolodin said that ensures the voter is not being pressured.
The judge, however, said the law spells out that early ballots can be “delivered or mailed to the county recorder or other officer in charge of elections” or be brought by the voter to any polling place. And all that, he said, ensures the 1991 law preserves the constitutional requirement for secrecy in voting.
Jantzen, in noting how long there has been no-excuse early voting, did not address claims by attorneys for Secretary of State Katie Hobbs that the GOP waited too long to challenge the practice.
But it is a matter of record that the lawsuit was filed only after the results of the 2020 election showed that while Republican Donald Trump outpolled Democrat Joe Biden among voters who went to the polling place on election day, Biden had an even larger edge among those who voted early.
The lawsuit isn’t the only bid to kill early voting.
Legislation approved by the Senate Government Committee in March would accomplish the same thing, along with barring the use of machines to tally votes.
But Senate President Karen Fann, R-Prescott, has so far shown no interest in advancing the measure, at least in part amid concerns about forcing individuals to stand in line to vote, especially during the August primary.
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