Arizona Court Strikes Down Challenge to Mail-In Voting

A worker at the Miami-Dade County Elections Department works on tabulating the Vote by Mail ballots that have been returned in Doral, Fla. on Nov. 3, 2020. (Joe Raedle/Getty Images)

An Arizona Appellate Court upheld a lower court’s decision to reject a lawsuit from the Arizona Republican Party (AZGOP) filed against election officials for alleging Arizona’s mail-in voting law violated the Arizona Constitution’s secrecy clause.

The secrecy clause states “All elections by the people shall be by ballot, or by such other method as may be prescribed by law; Provided that secrecy in voting shall be preserved,” according to the court memo announcing the decision.

The superior court in their ruling found Arizona’s mail-in voting laws “adequately preserve secrecy in voting” and denied the AZGOP and its Chairwoman Kelli Ward’s lawsuit from moving forward. The appellate court upheld the lower court’s decision on Tuesday.

The earlier ruling by a superior court came to a separate conclusion, with the appellate court affirming the lower court’s decision. Judge Cynthia J. Bailey delivered the decision of the court where the two other judges also joined.

AZ GOP Claimed Law Violates Secrecy

The party appealed the lower court’s ruling in June and oral arguments were heard in December before this week’s ruling. They originally filed a special action petition with the Arizona Supreme Court in February 2022, but the court declined special jurisdiction and recommended filing in the superior court.

They named the secretary of state and all of the top election officials in each of Arizona’s 15 counties in their original lawsuit.

The party argued in its first lawsuit that “in-person voting at the polls on a fixed date in a secret matter is the only constitutional manner of voting in Arizona.” They also argued in their appeal “the Arizona Constitution explicitly requires voting in person.”

In their reply brief on appeal, they refined their argument. The court said the party “conced[ed] that voting in person before election day may be constitutional, and argued instead that mail-in voting violates the Secrecy Clause only because it takes place without the [law’s] requirements,” according to the court memo.

Those requirements stem from mail-in ballot language in place when mail-in voting first came to Arizona, where an official was required to be present and watch the voter seal their ballot in an envelope.

“We’re not challenging mail-in voting overall, what we’re challenging is the current system of mail-in voting where a restricted zone is not secured around the voter,” the plaintiffs wrote.

The court judged whether the Arizona Constitution required a secure restricted zone around a voter who fills out a mail-in ballot and found the law preserves secrecy.

The court wrote while interpreting the Constitution they did so in a lens when the original wording was written and the meaning at the time.

“The Secrecy Clause’s meaning is clear: when providing for voting by ballot or any other method, the legislature must uphold voters’ ability to conceal their choices,” the opinion said. “The constitution does not mandate any particular method for preserving secrecy in voting.”

History of Voting by Mail in Arizona

Prior to 1991, voters in Arizona filling out absentee ballots had to do so in the presence of “an officer authorized to administer oaths, mark the ballot in a manner so that the officer could not see how the person voted, and then seal the ballot,” according to the opinion (pdf).

In 1991, the state legislature amended those laws to allow any voter in the state to vote by mail and removed the requirement of filling out the absentee ballot in the presence of an officer.

A woman holding her ballot walks past a Vote by Mail Drop Box for the 2020 U.S. Elections in Monterey Park, Calif., on Oct. 5, 2020. (Frederic J. Brown/AFP via Getty Images)

Mojave County Superior Court Judge Lee Jantzen ruled against the Arizona GOP and its chair in their first lawsuit filing, in support of a 1991 law that permits no-excuse mail-in ballots.

“Defendants for the past thirty years have applied the laws of Arizona as written,” Jantzen wrote in his ruling (pdf). “The laws are far from perfect and nobody anticipated thirty years ago that approximately 90 percent of Arizona voters would vote by mail-in ballot during a pandemic, but these laws are NOT in violation of the Arizona Constitution.”

No-excuse mail-in ballots “are not inapposite of the intentions of the framers of the Constitution,” he added.

Election integrity in Arizona has been a pressing issue since the 2020 general elections, the results of which have been vigorously disputed. In 2020, around 89 percent of voters voted by mail before election day.

“The Republican Party of Arizona, under Chairwoman Dr. Kelli Ward, is concerned that if this ruling stands, Arizona’s most vulnerable voters will be deprived of the protections to which they are constitutionally entitled,” the Arizona GOP said after the superior court blocked their initial lawsuit.

The Arizona GOP said it seeks to restore mail-in ballots for the “sick, elderly, and other absentee voters” to ensure they have the constitutionally guaranteed protection of election officials safeguarding their votes from “ballot traffickers.”

“We are sorry that the most vulnerable voters of Arizona will not receive the protections to which they are constitutionally entitled if this ruling stands—people who truly cannot make it to the polls versus those who find convenience voting in the comfort of their homes,” said Alex Kolodin, the attorney representing the case.