PHOENIX — Two judges on the 9th Circuit Court of Appeals questioned Monday whether it was legal for a trial judge to give Arizonans an extra 2½ weeks to register to vote.
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At a telephonic hearing, appellate Judge Jay Bybee said the state did nothing to specifically make it more difficult for the two groups that sued to push back the deadline, Mi Familia Vota and the Arizona Coalition for Change, to sign up voters.
Instead, he said, the difficulty was simply the result of the COVID-19 outbreak and restrictions on travel and gatherings imposed by Gov. Doug Ducey.
Appellate Judge William Fletcher expressed similar concerns.
“There is, or was, a statutory deadline (of Oct. 5) which, absent COVID, was perfectly valid,” he said. “And I’m not sure that the presence of COVID makes it invalid.”
The other judge on the three-judge panel, Judge Marsha Berzon, seemed sympathetic to extending the deadline, but had her own concerns about the order by U.S. District Court Judge Steven Logan pushing the deadline back to Oct. 23.
The judges did not say when they will rule.
But even if the appellate judges void Logan’s order and its Oct. 23 deadline, that won’t end the matter.
The judges would still need to decide on a plea by Democratic Secretary of State Katie Hobbs that if they overturn the order, they should provide a few more days to gather up the registrations that have been occurring since, perhaps through this Friday, Oct. 16.
But attorney Kory Langhofer, representing the Republican National Committee and the National Republican Senatorial Committee, urged the judges to stop new registrations immediately.
Hobbs also wants the appellate court to say that anyone who relied on Logan’s order and registered in the interim still gets to vote this election, even if the judges ultimately conclude Logan’s decision was legally wrong.
If the 9th Circuit does overturn the later deadline, there appeared to be little opposition to letting those who signed up since Oct. 5 vote in the general election, especially as some already may have cast early ballots.
An attorney for the two groups that sued, Matthew Brinckerhoff, said about 15,000 people submitted voter registration forms in the first day after Logan’s order on Oct. 5.
And Hobbs’ attorney, Roopali Desai, said she’s not sure it would be possible to separate out those registrations received after the original Oct. 5 deadline.
Fletcher said he’s hoping the court can avoid the whole issue.
He told attorneys for all sides they should try to find a compromise —and quickly — about when new registrations for the Nov. 3 election should be cut off.
Monday’s hearing came as Hobbs reversed course and decided to ask the appellate judges to overturn Logan.
Desai said Hobbs always opposed scrapping the Oct. 5 deadline because it could cause chaos so close to the Nov. 3 election. But Desai said Hobbs did not initially appeal for fear it would cause more confusion than simply leaving the order from Logan extending the deadline in place.
Now, with the case already appealed by others, that’s no longer the case.
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Hobbs’ initial decision not to appeal put her at odds with 10 of the state’s 15 county recorders from both parties, the people who have to process the new registrations. They joined with the Republican governor and with legislative leaders in their own legal filing asking the appellate judges to reverse Logan’s order.
“Voting in Arizona already has begun,” wrote their attorney Brett Johnson, pointing out that early ballots went out last Wednesday. “County recorders had already shifted resources from registration functions to election activities.”
Johnson pointed out that recorders were never included in the lawsuit, which named only Hobbs as defendant.
Yet he said they are the ones responsible for collecting, verifying and maintaining voter registration applications.
Now, Johnson said, they have to receive, review, verify and follow up on voter-registration applications, something he said “cannot be accomplished this close to the election without creating questions about the authenticity of those registrations.”
The attorney for Mi Familia Vota and the Arizona Coalition for Change, however, urged the appellate judges to leave Logan’s order in place.
The pandemic restrictions made it difficult to sign up voters, and it would be a “travesty” to disenfranchise people of the right to vote, said Brinckerhoff.
“An event occurred of extreme and unpredictable circumstance and it had this profound impact on everyone’s lives,” he said.
Brinckerhoff said this is the kind of situation where a court can step in and make things right.
Johnson, however, took the plaintiffs to task for blaming Ducey’s orders for their inability to get people registered.
“This is incorrect,” he wrote to the court. “The executive orders expressly protected the exercise of constitutional rights,” which he said includes registering people to vote.