COVID-19 Outbreak Highlights the Inequities Exacerbated By Arizona Voting Restrictions That Are Likely to Come Under Supreme Court Review

By Alexandra Eagle.

In the last few months, the COVID-19 pandemic has spurred heated debate over how best to ensure safe and equitable access to voting. Not only has the current public health crisis exacerbated many of the social concerns already implicated in discussions about voters’ rights, it has prompted many states to quickly alter voting practices and laws to ensure a broad, safe range of options for voters. 

However, summer elections have demonstrated numerous challenges; long lines, polling-place closures, and concerns about the capacity of both the Postal Service and the respective states to handle an increased demand for mail-in ballots have impacted primaries in the last few months.

Arizona is no exception. The state has increased funding and efforts surrounding early voting options, and will allow early voting at polling locations for almost an entire month leading up to the November election. But, at odds with Arizona’s proactive measures are two voting restrictions that predate the pandemic: the state’s practice of completely throwing out “out-of-precinct” (OOP) ballots and the state’s criminalization of ballot harvesting. Although the measures were enacted prior to the pandemic, their effects are more salient than ever in the context of COVID-19, the heightened concern for voters’ rights, and Arizona’s emergence as a new potential battleground state.
This photo by Ian Lucero Films is licensed under CC BY-NC 2.0.

An initial legal challenge to the two measures came in 2016 and eventually made its way to the Ninth Circuit, which issued an en banc decision in January 2020 (DNC v. Hobbs). In DNC v. Hobbs, the court invalidated both measures, saying that they impermissibly and disproportionately affected Black, Latinx, and Native American voters (either in intention or effect), in violation of Section 2 of the Voting Rights Act. While the Ninth Circuit struck down the law, they granted stay, effectively allowing the restrictions to remain in effect pending appeal to the Supreme Court.

On March 3, 2020, Arizona Attorney General Mark Brnovich intervened on behalf of the state of Arizona to carry the appeal forward to the Supreme Court (Brnovich v. DNC), a move opposed by Arizona Secretary of State Katie Hobbs.

Arizona’s Restrictive OOP and Ballot Collection Practices

The concerns noted by both Secretary Hobbs and the Ninth Circuit only stand to be exaggerated by the pandemic. The OOP policy in Arizona requires that ballots cast at improper polling locations or filled out improperly be thrown out in their entirety (including the parts of the ballot pertaining to state and national elections). The practical result of this measure is that Arizona rejects ballots at a rate eleven times higher than the rejection rate of the state with the next highest OOP rejection rate (Washington).

In DNC v. Hobbs, the court reasoned that many of the circumstances that frequently contribute to OOP voting—frequently changing polling locations as well as residential mobility—affected minority voters at a much higher rate than white voters. For instance, around 40% of polling places in Phoenix changed between 2006 and 2008, and again between 2010 and 2012. As a result, voters whose polling places move are much more likely to have their ballots thrown out for OOP issues, and Black and Latinx voters are statistically more likely to experience instability in their polling locations. The polling place changes in Phoenix were so constant and confusing that Chief Judge Thomas, in an earlier dissent, went so far as to compare them to the “changing stairways at Hogwarts, constantly moving and sending everyone to the wrong place.”

These circumstances have only worsened during the pandemic, with polling locations closing and changing frequently, and many residents (disproportionately minority residents) facing housing instability.

Also at issue in the case was Arizona’s criminalization of ballot collection (sometimes termed “ballot harvesting”), the practice of collection and return of ballots by third parties. In Arizona, this practice is currently only permitted if performed by a family or household member or caretaker. And, while the majority of states allow third-party ballot collection in some form, the practice has increasingly been the subject of debate on the national stage. Proponents argue that ballot collection is essential for ensuring voting rights to people who may otherwise face massive barriers to vote (e.g., rural voters without regular postal services, unsheltered or homeless voters, elderly voters, disabled voters, and working class voters who cannot leave work on election day). Critics often argue, under the auspice of states’ rights and election integrity, that ballot collection invites fraud, although instances of ballot manipulation due to harvesting have been sparse. Unsurprisingly, President Trump has condemned the practice via Twitter, alongside unfounded warnings about ballot theft and fraud.

However, there is no doubt that laws of this kind disproportionately effect voters who are already facing disenfranchisement, the root-causes of which have only gotten worse in the last few months; in short, ballot collection restrictions have the greatest impact on communities that already struggle to complete or mail their ballots, or to appear in person to vote.

Stay Tuned: Supreme Court Likely To Weigh in, but Not Before November 3

The Supreme Court is scheduled for conference on September 29, when the Justices will decide whether to hear the case or let the Ninth Circuit decision stand. No matter what the Court decides, the outcome will have widespread implications for voting rights protections and restrictions all around the country. Denial of the case would open the door for ballot collection in the upcoming election, as well as ensure the counting of thousands of Arizona ballots that might otherwise be thrown out due to OOP issues (but leave the definitive law on restrictions like Arizona’s unsettled for the time being).

However, the Supreme Court is likely to accept the case, which is an opportunity to set the standard for Section 2 review of ballot collection restrictions (an issue that has thus far eluded review by the Court and divided lower courts). More than fourteen outside parties, including other states, civil rights organizations, and members of the legislature, have filed amicus briefs with the Court, many of them urging the Justices to consider the merits of the appeal for the purpose of clarifying Section 2 review. (However, a final decision is unlikely before the 2020 election.)

Stay tuned . . . a Supreme Court ruling invalidating the Arizona restrictions could open the door for more expansive ballot collection practices in our state and the nation, while a win for Attorney General Brnovich and the State of Arizona could mean increased voter-restriction measures with limited scrutiny or recourse for disenfranchised citizens . . .

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By Alexandra Eagle.

J.D. Candidate, 2022

Alexandra Eagle is a 2L at the Sandra Day O’Connor College of Law and the Class of 2022 O’Connor Institute Endowed O’Connor Scholarship recipient. Her undergraduate studies in Anthropology, Economics, and Gender Studies (CU Boulder, 2016) inspired curiosity about people’s lived experiences of policy and ultimately brought her to law school. In summer 2020, Ms. Eagle interned with the Initiative for Strategic Litigation in Africa, a feminist and pan-African non-profit based in Johannesburg, South Africa. A native of the mountain west, Ms. Eagle loves to spend breaks from studying climbing and hiking around beautiful Arizona!

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.