Only days before the November 8 election, an emergency application involving voting procedures was filed at the court – specifically, a challenge to an Arizona law, known as H.B. 2023, that makes it a felony for anyone other than election officials, mail carriers, family members, or caregivers to collect early voting ballots. This morning the justices blocked a ruling by the U.S. Court of Appeals for the Ninth Circuit in favor of the challengers, thereby allowing the Arizona law to remain in effect in advance of Tuesday’s election.
Proponents of the law argued that the measure is necessary to prevent vote fraud. Arizona Governor Doug Ducey signed the law in March of this year, and it went into effect in August. But in April, a group of Arizona voters and Democratic groups challenged the law, arguing that it violates the federal Voting Rights Act and the Constitution. A federal district court rejected the challengers’ request to block the law temporarily, and a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit affirmed that ruling on October 28. But yesterday the en banc Ninth Circuit reversed the three-judge panel and put the law on hold.
Late yesterday afternoon, Arizona asked the Supreme Court to step in, reverse the en banc court’s “unprecedented and unsustainable order,” and allow the law to remain effect. It relied heavily on Purcell v. Gonzalez, a 2006 challenge to another Arizona voting law. Purcell, the state contended, suggests that, as an election draws nearer, courts should be more reluctant to order changes to voting laws, because of the possibility that doing so will cause voter confusion and incentives not to go to the polls. With only four days before the election, the state emphasizes, “emotions and rushed judgment typically have no place and should be avoided.”
Arizona adds that H.B. 2023 is hardly an outlier: twenty-six other states bar this kind of ballot “harvesting,” while thirteen other states make it a felony.
The state’s stay application went to Justice Anthony Kennedy, who is responsible for the geographic area that includes Arizona. Soon after receiving the application last night, Kennedy directed the challengers to respond by 9 a.m. this morning.
In the brief that they filed this morning, the challengers cited Arizona’s “long history of racial discrimination” and emphasize that ballot “harvesting” has long been “one of the most popular and effective methods of minority voting in Arizona.” The burdens imposed by H.B. 2023, they contended, “fall disproportionately on minority voters,” who may face significant obstacles to either voting in person or delivering their early voting ballots themselves. As an example, they pointed to one Indian community in Arizona, the Tohono O’odham Nation, which occupies land roughly the same size as Connecticut but has only one post office and no home mail delivery.
The challengers dismissed the state’s efforts to justify the ballot-harvesting bar as an anti-fraud measure. Not a single supporter of the bill, they stressed, could point to even one incident of actual ballot-collection fraud. Moreover, they continued, other “substantial security measures” are already in place to combat fraud.
The challengers also rejected the state’s suggestion that the court’s ruling in Purcell favors the state. If anything, they asserted, it’s the other way around: Reversing the en banc court’s ruling would cause more confusion because ballot collection has been standard practice for many years, and ballot-collection efforts started up within hours of the en banc Ninth Circuit’s ruling. And allowing that ruling to stay in effect would not change election procedures, particularly when election administrators have said that they do not intend to enforce the law.
Kennedy could have acted on the state’s request himself, but instead he opted to refer it to the full court. Shortly after 11 a.m. this morning, the court granted the state’s request, in a brief two-sentence order. The Ninth Circuit’s injunction, the court indicated, “is stayed pending final disposition of” the appeal in that court – which as a practical matter means that the ballot-harvesting bar will be in effect for Tuesday’s election. There were no noted dissents from the court’s order, so there is no way to know which justices voted for the stay.