Arizona Asks Supreme Court to Uphold Election Laws

July 29, 2020 Updated: July 29, 2020

Arizona has filed papers with the Supreme Court in an effort to fight off Democratic Party efforts to relax electoral integrity measures and throw open the state to ballot-harvesting and out-of-precinct voting.

The case is cited as Brnovich v. Democratic National Committee (DNC). Mark Brnovich is the state’s Republican attorney general.

“Prohibiting unlimited third-party ballot harvesting is a commonsense means of protecting the secret ballot and preventing undue influence, voter fraud, ballot tampering, and voter intimidation,” Brnovich wrote in court documents.

The Supreme Court needs to hear the case because only it “can clarify this growing area of law, which is vital to American democracy,” Brnovich wrote on Twitter on July 28.

The DNC has strategically filed a raft of lawsuits in battleground states in the hope of changing state voting rules in time for the elections in November.

Arizona, like other states, has adopted rules to promote the order and integrity of its elections.

One provision is an “out-of-precinct policy,” which doesn’t count provisional ballots cast in person on Election Day outside of the voter’s designated precinct. Another is a “ballot-collection law,” known as H.B. 2023, that permits only specific persons such as family and household members, caregivers, mail carriers, and election officials to handle another person’s completed early ballot.

Most states require voters to vote in their own precincts, and around 20 states limit ballot collection, according to court documents.

A U.S. district court upheld Arizona’s provisions, which were challenged under Section 2 of the Voting Rights Act and the 15th Amendment to the U.S. Constitution. A panel of the 9th Circuit Court of Appeals affirmed the trial court but then at the en banc stage reversed, against the recommendations of the federal government.

The provisions regarding ballot-harvesting and out-of-precinct voting were ruled racially discriminatory and therefore unconstitutional by the appeals court.

“For over a century, Arizona has repeatedly targeted its American Indian, Hispanic, and African American citizens, limiting or eliminating their ability to vote and to participate in the political process,” the appeals court wrote.

Minority populations, who lean Democratic, have been disproportionately harmed in recent elections by the two Arizona policies, the court wrote.

The effort to revive the policies is supported by Republicans, including Arizona Gov. Doug Ducey and a group of U.S. senators, including Sen. Ted Cruz of Texas, who say they are needed to prevent cheating and disorder in the electoral system.

In a brief, Brnovich denounced Democrats, saying they “boldly propose that the invalidation of two prevalent, commonsense state election provisions does not warrant review” by the high court.

Marc Elias of the high-powered Democratic law firm Perkins Coie is listed as counsel of record for the DNC in the Supreme Court docket.

Elias has a long history of successfully challenging electoral integrity programs in court. His online biography cites three of his cases in which courts struck down voter-ID laws in Missouri, Iowa, and North Carolina.

Elias wrote on the Democracy Docket website on May 24 that he is involved in litigating 16 cases in 13 states “with more coming soon.”

In a brief filed with the Supreme Court, Elias argues that the Republican litigants are misinterpreting the law, and he questioned the legal standing of the state’s attorney general to represent Arizona in the appeal.

“This case presents a poor vehicle for certiorari review, and the Court should deny the Petitions,” Elias wrote.

Elias is also a major figure in the “Russiagate” conspiracy, aimed to overturn the result of the previous presidential election. A lawyer who represented the DNC and Hillary Clinton’s campaign in the 2016 election cycle, Elias hired Fusion GPS in April 2016 to conduct opposition research against then-candidate Trump, The Washington Post previously reported. That research effort culminated in the salacious, discredited 35-page dossier written by former British spy Christopher Steele that purported to tie Trump to the Russian government.

The various DNC lawsuits aim to enshrine what Elias calls the “Four Pillars to safeguarding voting rights with vote by mail,” a legal template endorsed by left-of-center activists including former Georgia gubernatorial candidate Stacey Abrams, who called the pillars the “gold standard.”

Those pillars require that with voting-by-mail, “postage must be free or prepaid by the government,” “ballots mailed on or before Election Day must count,” “signature matching laws need to be reformed to protect voters,” and “community organizations should be permitted to help collect and deliver voted, sealed ballots.”

Language implementing the pillars has been included in the $3 trillion proposed Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act that the House passed May 15, as well as in the proposed VoteSafe Act and the Natural Disaster and Emergency Ballot Act.