A pair of Arizona election policies that Democrats say unfairly burden voters are constitutional and in keeping with the Voting Rights Act, a split federal appeals court ruled Wednesday.
A three-judge panel for the U.S. Court of Appeals for the Ninth Circuit affirmed a trial court’s May ruling that greenlighted the state’s practice of tossing ballots that have been cast in the wrong precinct, and a state law criminalizing most third-party collection of early ballots.
The Democratic National Committee, along with its Senate campaign arm, the Democratic Senatorial Campaign Committee, and the Arizona Democratic Party, first challenged those election practices in April 2016. They argued the out-of-precinct policy places an unconstitutional burden on the right to vote, and the criminalization of most ballot collection was enacted by state legislators with discriminatory intent. U.S. District Judge Douglas Rayes of the District of Arizona sided with the state of Arizona in rejecting those claims.
Arizona’s Republican-controlled Legislature passed a law in 2016 that permitted only a voter’s family and household member, or caregiver, to collect his or her early ballot.
“DNC argues that H.B. 2023 imposes severe burdens on subgroups of voters unable to vote without the third-party ballot collection services prohibited by H.B. 2023. This argument fails,” said the 76-page opinion written by Judge Sandra Ikuta and joined by Judge Carlos Bea. Ikuta said the DNC failed to show how many voters are unable to vote without such services.
Ikuta also sided with the lower court in concluding the law supported Arizona’s interest in preventing voter fraud, “even without direct evidence of ballot collection voter fraud in Arizona.”
The majority agreed with the district court that the burden of the state’s policy to only accept ballots cast within the correct precinct was “minimal.” While the DNC said it was only specifically challenging Arizona’s practice of discarding votes cast out-of-precinct, Ikuta called that difference a “sophistical one; it conflates the burden of complying with an election rule with the consequence of noncompliance.”
“Although DNC argues that minorities are more likely to cast out-of-precinct ballots, and that there have been close elections where out-of-precinct ballots could have made a difference, the fact that a practice falls more heavily on minorities is not sufficient to make out a Section 2 violation” of the Voting Rights Act of 1965, Ikuta wrote.
Chief Circuit Judge Sidney Thomas’ dissent took the majority opinion to task, and criticized Arizona’s “labyrinthian system” as one that could easily confuse voters about their assigned polling locations.
“There is no question that Arizona’s practice of discarding OOP ballots is also a practice of disproportionately discarding ballots cast by minority voters. The district court recognized as much,” Thomas wrote. Hispanic, Native American and black voters were twice as likely to vote out of precinct in the 2016 general election, he said.
“The burden imposed by Arizona’s refusal to count OOP votes is severe,” Thomas wrote.
The DNC could ask the full Ninth Circuit to review the case, or appeal it to the U.S. Supreme Court.
Perkins Coie represented the plaintiffs in the case, with D.C.-based partner Bruce Spiva arguing before the Ninth Circuit. Arizona Solicitor General Dominic Draye argued on behalf of the state, while Snell & Wilmer partner Brett Johnson argued on behalf of the Arizona Republican Party and individual defendants who intervened in the case.