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Arizona Republican Party seeks end to early voting in state

Two voters wait in line for early voting at Pima County Recorders Eastside Office on Oct. 7, 2020. 

PHOENIX — The Arizona Republican Party is trying to kill early voting in the state, a method that’s preferred for casting votes by more than 80% of state residents.

There is nothing in the state constitution to allow for early voting, legal papers filed Friday ask the Arizona Supreme Court to conclude.

The only form of voting specifically authorized by the framers of the constitution is in person and on Election Day, Attorney Alexander Kolodin told Capitol Media Services.

What that means, he said, is that anything else — including the current system of no-excuse early ballots created by the legislature in 1991 — is illegal.

If the justices do not buy that argument, Kolodin has an alternate legal theory. He argues that, at the very least, the state is required to return to the way the situation was before 1991. That’s when voters could get early ballots, but only if they provided some proof they needed it, like being away from their voting precinct on Election Day or a physical disability.

And Kolodin said that, at least, would provide more security over early ballots than the current system.

Secretary of State Katie Hobbs, a Democrat, who is named as defendant in the lawsuit, called the move a “ridiculous attempt to undermine our elections.”

“This lawsuit filed by the Republican Party of Arizona has a single aim: to make it more difficult to vote,” Hobbs, who is running for governor, said in a prepared statement.

An aide to Attorney General Mark Brnovich, a Republican candidate for U.S. Senate who is legally obligated to defend constitutional challenges to state laws, said he is reviewing the lawsuit.

And a press aide to Gov. Doug Ducey, the top elected Republican in Arizona, declined to comment on the effort by the GOP to quash the early voting system. But Ducey has signed prior moves to curb the process, including making it a crime to bring another person’s early ballot to the polls unless it’s a family member, and allowing counties to stop sending early ballots to people who do not regularly use them.

The move comes amid extensive debate in the Legislature about early voting and whether it provides opportunities for fraud.

Some Republican lawmakers have proposed repealing early voting statutes entirely.

This approach is in line with arguments by former President Donald Trump who, in the wake of his 2020 loss in Arizona and elsewhere, has argued that Election Day should be one day only, with early voting allowed only for those who have a legitimate reason.

But that has not found favor among sufficient members of the GOP to pass muster given the popularity among voters from both major parties as well as the independents who make up about a third of registered voters.

Instead, Republican legislators here have coalesced around a plan to impose new restrictions beyond the sole existing requirement to sign the exterior of the envelope with the idea that county election officials compare the signatures with those on file. The plan, set for a final roll-call vote, would oblige early voters to provide a date of birth and information from another government document such as a Social Security card or an Arizona driver’s license.

The legality of early voting is not the only issue addressed in the lawsuit.

Kolodin, the attorney for the GOP Party’s lawsuit, also contends that if early voting is legal — a point he disputes — that still does not permit the use of “drop boxes” for early ballots, something Hobbs has permitted in the Election Procedures Manual.

State law provides for only only two ways for early voters to transmit ballots for tabulation: delivering or mailing “to the county recorder or other officer in charge of elections” or depositing “at any polling place in the county,” he says.

“A drop box is not an office of the county recorder, nor is it a ‘polling place,’” he is telling the justices. And Kolodin said none of this is helped by laws that allow county supervisors to authorize “voting centers.”

“Drop boxes are also not voting centers — which, like polling places, are staffed so that a voter may present identification ‘to receive the appropriate ballot for that voter on election day,’” he said. By contrast, Kolodin said, drop boxes are not staffed.

Even assuming that the Arizona Constitution allows the legislature to authorize drop boxes, Kolodin said, lawmakers have never enacted such a statute.

“Thus, the secretary exceeds her legal authority by prescribing drop-box rules,” he said.

Separately, Kolodin said Hobbs is violating the law by not setting up uniform rules for counties to use when verifying the signatures on early ballot envelopes.

But it is the effort to quash early voting that has the potential to forever change how elections are run in the state.

Kolodin cites several constitutional provisions he said back up his contention.

For example, he told the justices, the section about the right of voters to create their own laws or second-guess those approved by the legislature requires the secretary of state to put them on the ballot “in such a manner that the electors may express at the polls” their approval or disapproval.

“The ordinary meaning of ‘polls’ is one of the places where the votes are cast at an election,” Kolodin said.

“Mail-in voting does not occur at a specific place designated by county boards (of supervisors) or a place with sufficient number of voting booths,” he said. “Because no-excuse mail-in voting is not exercised at the polls, it is unconstitutional.”

And Kolodin said there’s a good reason the Arizona Constitution requires people to cast their votes at polling places, alone, and in secret.

“Mail-in ballots, by their very nature, cannot be made entirely secret or free from coercion,” he said. “If bad actors wish to pay for votes or coerce electors to vote a certain way, there is nothing to stop them from standing over electors as they complete their ballots.”

Kolodin acknowledged that taking his case directly to the Arizona Supreme Court is unusual. Virtually all lawsuits, including challenges to election laws, normally go to a trial judge to hear evidence.

But this case, he said, has no facts in dispute and simply deals with a matter of constitutional interpretation.

Potentially more significant, Kolodin said, whoever loses at the trial court would appeal, meaning the issue would wind up before the state’s high court — eventually. Going directly to the Supreme Court expedites a ruling, one that could come before this year’s elections.

Kolodin is not working from a blank slate.

In January, a state court in Pennsylvania struck down that state’s law, first enacted in 2019, which allows for no-excuse early voting.

Judge Mary Hannah Leavitt, a Republican, writing for the majority in the 3-2 ruling, said that voting “requires the physical presence of the elector.” And she said the legislature cannot change voting laws without first amending the state constitution.

That case, cited by Kolodin in his legal arguments here, is on appeal to the Pennsylvania Supreme Court.

And just last week Jane Brady, chair of the Delaware Republican Party, filed a similar lawsuit there claiming there is no basis in that state’s constitution for early voting.

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