Arizona attorney general wants court to put ballot harvesting decision on hold

Arizona Attorney General Mark Brnovich on Friday asked federal judges to keep in place a law that prohibits voters from delivering other people's mail ballots to the polls.

A split 9th U.S. Circuit Court of Appeals ruled earlier in the week that the policy is illegal and violates the Voting Rights Act. Brnovich said he plans to defend the law and will appeal to the U.S. Supreme Court. In the meantime, he wants the appeals judges to hold off on formally sending the case back to a lower court.

Republican legislators argue the practice of so-called "ballot harvesting" leaves elections vulnerable to fraud. But Democrats say it is a helpful way for voters with poor mail service, or none at all, to participate in elections.

Democrats sued and a majority on the 9th Circuit decided that the policy disproportionately affected Hispanic, African American and Native American voters.

And noting that no cases of voter fraud were linked to ballot collection but that the practice was mostly used by Democrats in areas populated largely by people of color, the court also said the Republican-controlled Legislature enacted the ban with discriminatory intent.

The court sent the case back to a district court for further proceedings. It also ruled illegal a separate policy that calls for discarding the entire ballot of residents who vote in the wrong precinct, rather than counting votes for races in which the voter was eligible to participate, such as the races for president and U.S. Senate. A hearing is scheduled for Feb. 5.

But Brnovich wants the appeals judges to hold off on officially sending the case back to a lower court.

Courts have ruled in favor of the state's ballot collection law in the past, the Republican attorney general added, pointing to the U.S. Supreme Court's refusal to block implementation of the law while litigation unfolded.

Brnovich: Change could cause confusion in election year

Like the dissenting minority on the appeals court, Brnovich argued the law does not address merely hypothetical voter fraud either. Instead, he pointed to a case of voter fraud in North Carolina linked to ballot collection.

Brnovich argued that tossing the existing laws so quickly may cause confusion in the midst of an election year. Early voting in the presidential preference election begins in February and primaries are set for August.

"The Ninth Circuit took the unusual step of overruling multiple previous rulings in the state's favor, thereby rejecting Arizona's authority to secure its elections and discourage potential voter fraud," Brnovich said in a statement, describing Friday's filing as just the first step toward a full review by the U.S. Supreme Court.

Secretary of State Katie Hobbs, a Democrat elected while the case was already unfolding in court, lauded the 9th Circuit's decision. Hobbs, who is named as a defendant in the case, said she would not support an appeal that sought to keep in place the law against ballot collection. 

"I opposed this law when it was being considered by the Legislature, and nothing has changed since then. The court made the right call for voters in this state," Hobbs said in a statement after the 9th Circuit's decision.

"I hope the Attorney General’s Office recognizes that this issue is a red herring that undermines confidence in our democracy."

But the Secretary of State's Office said the attorney general is named as a defendant, too, and can fight the case without Hobbs' support.

Contact Andrew Oxford at andrew.oxford@arizonarepublic.com or on Twitter at @andrewboxford.