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Arizona Ballot Laws Tossed, U.S. Supreme Court Review Likely

Jan. 27, 2020, 9:49 PM

An Arizona election law restricting who can return early ballots was struck down by a federal appeals court because it discriminates against minorities, a decision that sets up a likely showdown at the U.S. Supreme Court.

The en banc U.S. Court of Appeals for the Ninth Circuit ruled that the law violated the Voting Rights Act. It also tossed a policy in Arizona that allows ballots to be discarded if the vote was cast at the wrong precinct.

The “ballot harvesting” law on early voting challenged by Democrats criminalizes the collection of another person’s ballot.

“Minority voters rely on third-party ballot collection” far more than white voters, the 11-member Ninth Circuit panel said.

“Arizona’s long history of race-based voting discrimination” and “the false, race-based claims of ballot collection fraud used to convince Arizona legislators to pass” the law were among the reasons the majority found that lawmakers acted with discriminatory intent.

But four members dissented, saying the majority went too far in finding that the Arizona Legislature acted with discriminatory intent. Dissenters said the majority drew “factual inferences that the evidence cannot support” to strike “down Arizona’s duly enacted policies.”

Rick Hasen, an election law professor at the University of California-Irvine,
said the Supreme Court is likely to weigh in. He also said the decision could be “a hook for putting Arizona under federal supervision” for elections.

That could be an incentive for the Supreme Court to weigh in, said Pepperdine University election law professor Derek Muller.

Disputes over “ballot harvesting” measures are popping up in numerous jurisdictions, said Florida State University election law professor Michael Morley.

Democrats generally support liberalizing who can collect such ballots, whereas Republicans typically want stricter limits on such efforts to deter election fraud.

The Supreme Court may want a say in how lower courts go about inferring discriminatory intent when passing such law, Morley said.

The case is Democratic Nat’l Comm. v. Hobbs, No. 18-15845, 1/27/20.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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