PHOENIX — A federal appeals court has given the go-ahead for the state to enforce a 2022 law that challengers argued could inadvertently make felons out of volunteers who register people to vote.
In a 35-page opinion Friday, the 9th Circuit Court of Appeals rejected arguments by three organizations that the law is too vague and so poorly written that anyone reading it would not know what is — and is not — legal, making it unconstitutionally too vague to be on the books.
Judge Anthony Johnstone, writing for the full court, acknowledged that the law, approved by Republican lawmakers amid claims of election fraud, makes it a Class 5 felony for anyone who "knowingly provides a mechanism for voting to another person who is registered in another state.'' That carries a presumptive 18-month prison term.
And he said that the phrase "mechanism for voting'' arguably encompasses voter registration and education, all activities undertaken by Arizona Alliance for Retired American, Voto Latino, and Priorities USA.
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But Johnstone said he and the other judges were not convinced that what's in the 2022 law actually put anyone from any of those organizations at risk of winding up behind bars.
"The full text and statutory context of the Felony Provision show that it likely does not criminalize those activities,'' he wrote.
Separately the judges also gave the go-ahead for county recorders to cancel the registration of people if they receive "credible information'' that the person is registered in another county and confirms that fact.
In this case, though, the appellate court sidestepped the question of the legality of that provision. Instead, they said the three groups lacked the legal standing to sue in the first place.
Friday's ruling is a victory for Sen. J.D. Mesnard, a Chandler Republican, who crafted the 2022 legislation containing both provisions. He said the target was anyone who would forward an early ballot addressed to someone not living in Arizona.
Mesnard acknowledged at the time he had no first-hand knowledge of people getting early ballots from Arizona who actually are registered to vote elsewhere.
"I've had folks come to me and insist this has happened,'' he said.
"I've not gone to investigate,'' he continued. But Mesnard said that his legislation will "make it clear'' what the law requires.
The measure at issue here was one of several approved by GOP lawmakers in 2022Â with the stated intent of curbing what they claimed was fraud.
As approved, it makes it a felony to knowingly provide "a mechanism for voting to another person who is registered in another state, including by forwarding an early ballot address to the other person.'' That is backed up with another provision saying that anyone who receives an early ballot meant for someone who no longer lives there must write "not at this address'' on the envelope and send it back.
It also directs county recorders to remove people from voting lists if they get confirmation from another county they must cancel the registration in their own county.
Attorney Daniel Arellano, in filing suit, said all that presents problems.
He said if someone helps register a voter here and that person also happens to be registered in another state, the person doing the registration could face prison time. Arellano said that ignores the fact that the person doing the registration may be unaware that there is a registration that is active in another state, perhaps because the person just moved here and has yet to cancel the earlier one.
"This risk will severely chill voter registration and mobilization efforts in Arizona, resulting in an undue burden on groups and individuals engaged in these efforts and voters who benefit from them,'' he argued in filing suit.
Arellano argued the provision also could affect parents who receive an early ballot in the mail for their child who just finished college out of state but is eligible to vote in Arizona.
"That parent could face felony charges if they forwarded the student's early ballot to them if the student at some point registered to vote in their out-of-state college town — even if the student has no intention to, and never actually does, vote in two places,'' he argued.
Johnstone, however, said that Arellano and his clients were misinterpreting the effect of the law.
He pointed out that the new provision was added to an already existing list of what is a crime, things like voting more than once, voting without eligibility, and tampering with the ballot, the ballot box, poll list, or vote totals.
"None of the listed actions implicate conduct before voting, such as registration, so 'mechanism for voting' should be interpreted consistently and include only a ballot itself and a ballot affidavit envelope,'' the judge wrote. "The Felony Provision does not criminalize voter registration and mobilization.''
The appellate court's decision to uphold the rest of the statute — the part about recorders canceling someone's registration — was on much narrower grounds. Johnstone said the three organizations lack the legal standing to challenge those provisions because they have not shown that it interferes with their voter registration and voter education efforts.
Strictly speaking, Friday's ruling is not the last word. All it does is allow the state to enforce the provision until there is a full-blown trial.
Whether that will occur remains unclear. None of the attorneys involved in the case immediately returned messages seeking comment.
Howard Fischer is a veteran journalist who has been reporting since 1970 and covering state politics and the Legislature since 1982. Follow him on X, formerly known as Twitter, Bluesky, and Threads at @azcapmedia or email azcapmedia@gmail.com.
