Judge Rules Against Democrats In Election Lawsuit; Upholding Ban On Ballot Collection

Arizona's election laws may be bad public policy, but they're not racist, a federal judge has concluded.

That's a bit of an oversimplification, but it more or less sums up the 83-page ruling that U.S. District Judge Douglas L. Rayes issued Wednesday in response to Democrats' lawsuit against the state of Arizona.

Prior to the ruling, lawyers representing the Democratic National Committee, Democratic Senatorial Campaign Committee, and Arizona Democratic Party had argued that two specific policies were violating the rights of nonwhite voters.

One of those policies was a 2016 law that made it a felony for anyone other than a family member, caregiver, or postal worker to turn in someone else's ballot. Before the law passed, it was common for community organizers from Latino activist groups to go door-to-door collecting people's mail-in ballots and delivering them to polling places. Similarly, in the Navajo Nation and Tohono O'odham reservations, voters in remote rural areas that lack home mail delivery frequently relied on other people to turn in their ballots.

But, as Judge Rayes pointed out in his ruling, there's not a whole lot of data about how often this was happening. As a result, it's hard to prove that outlawing the practice affected Latinos and Native Americans more than white people.

The other target of the Democrats' lawsuit was a statewide policy that provisional ballots cast in the wrong polling place aren't counted.

In his ruling, Rayes acknowledged that this policy primarily affects renters and people who move frequently, since their voter registration information may not match their current address. Statistically, those voters are more likely to be minorities.

But most people in Arizona choose to vote by mail — and elections officials across the state have been moving away from precinct-based voting in favor of a ballot center model, which eliminates the need for provisional ballots.

As a result, Rayes concluded, provisional ballots represent such a small portion of all the votes that are cast that refusing to count them "has no meaningful disparate impact on the opportunities of minority voters to elect their preferred representatives."

In 2014, A.J. LaFaro, then the chair of the Maricopa County Republican Party, posted a video on YouTube that showed a dark-haired man dropping off mail-in ballots at a polling site. In Judge Rayes' words, the video "merely shows a man of apparent Hispanic heritage dropping off ballots and not obviously violating any law."

But the clip went viral and was frequently cited in discussions about whether ballot collection — or, as Republicans began calling it, "ballot harvesting" — led to voter fraud. It later became part of a campaign ad for Michelle Reagan, who was running for Secretary of State.

Rayes cited this as an example of the "racial appeals" made by some supporters of HB 2023, the bill which banned ballot collection. He also acknowledged that the law "emerged in the context of racially polarizing voting, increased use of ballot collection as a Democratic GOTV [Get Out the Vote] strategy in low-efficacy minority communities, and on the heels of several prior efforts to restrict ballot collection, some of which were spearheaded by former Arizona State Senator Don Shooter."

Shooter, a Republican from Yuma, was recently expelled from the Arizona House of Representatives after multiple women accused him of sexual harassment. But back in 2010, he narrowly won a seat in the Legislature after receiving 53 percent of the overall vote. Though 83 percent of the white people in his district had voted for him, only 20 percent of Hispanic voters had, Rayes' ruling noted.

After that, he stated, Shooter made multiple attempts to crack down on ballot collection, citing "unfounded and often farfetched allegations" of fraud.

Despite this, Rayes concludes that HB 2023 "was not enacted with a racially discriminatory purpose." The Tucson Chapter of the Arizona Latino Republican Association had supported the bill, he wrote, as had former Phoenix City Councilman Michael Johnson, who's African-American. Also, he adds, Representative Charlene Fernandez, a Democrat representing Yuma, had testified that she didn't believe the bill was intended to suppress the Hispanic vote. 

The judge allowed that some of the supporters of the bill were targeting Democrats, not minorities, "even though racially polarized voting can something blur the lines." Doing so, he wrote, "is consistent with Arizona's history of advancing partisan objectives with the unintended consequence of ignoring minority interests."

Ultimately, he wrote, the Legislature was acting in good faith:

Though some individual legislators and proponents of limitations on ballot collection harbored partisan motives — perhaps implicitly informed by racial biases about the propensity of GOTV volunteers in minority communities to engage in nefarious activities — the legislature as a whole enacted H.B. 2023 in spite of opponents' concerns about its potential effect on GOTV efforts in minority communities, not because of that effect. Despite the lack of direct evidence supporting their concerns, the majority of H.B. 2023's proponents were sincere in their belief that ballot collection increased the risk of early voting fraud, and that H.B. 2023 was a necessary prophylactic measure to bring early mail ballot security in line with in-person voting.
Rayes noted that defendants failed to provide any evidence that ballot collectors had been committing voter fraud, and that the plaintiffs had "raised fair concerns about the wisdom" of both policies.

"The Court, however, is not charged with second-guessing the prudence of Arizona's laws," he wrote.

In a statement issued Thursday, Secretary of State Michelle Reagan said that she was pleased with the judge's ruling.

“I think most people agree that Arizona should make it easy to vote and hard to cheat," a written statement from her office said. "These commonsense policies and procedures ensure people are voting for the candidates who represent them at the state, federal and local level as well as prevent political activists from collecting voted ballots."

Reagan also acknowledged that the lawsuit was likely to face further challenges at the U.S. 9th Circuit Court of Appeals and the U.S. Supreme Court — a hunch that Democratic National Committee spokesperson Michael Tyler confirmed.

"The DNC will appeal this ruling immediately so that Arizona voters can have protections in place for the upcoming 2018 elections," he told Phoenix New Times.

For Joel Edman, the executive director of the Arizona Advocacy Network, a nonpartisan voting rights group, the ruling points to a larger problem: When states impose restrictions on voting, it's up to outside groups to prove that minority voters are being disproportionately affected.

"In a few election cycles, it may well be that there’s a lot of data to show that [the ballot collection law] does disproportionately affect Latino voters and Native American voters," he said. "But only after we’ve gone through years of people being disenfranchised."

In his view, the default assumption should be that everyone has the right to vote. States should have to justify the existence of any policies that makes it harder for people to do so, he added.

"The big picture that people should take away from this is that these are arbitrary rules that are keeping people from voting for no good reason at all," he said.
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Antonia Noori Farzan is a staff writer at New Times and an honors graduate of Columbia University's Graduate School of Journalism. Before moving to Arizona, she worked for the New Times Broward-Palm Beach.