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The four legal battles that could decide the Arizona election

Voters and political parties file a barrage of last-minute lawsuits as the once-solid GOP state threatens to tip blue.

A sign directs voters to a primary election voting station early, in Phoenix. CREDIT: AP Photo/Matt York
A sign directs voters to a primary election voting station early, in Phoenix. CREDIT: AP Photo/Matt York

Arizona has backed exactly one Democratic president over the last 60 years, but a massive surge in Latino voter registration and unpopular GOP figures up and down the ballot are threatening to turn the state blue. The Democratic Party is throwing substantial energy and money at winning Arizona’s 11 electoral votes, holding rallies in the race’s final week with Hillary Clinton, Tim Kaine, Michelle Obama, and other popular surrogates. The latest polls give Clinton a slim chance of winning the state.

But complicating Democrats’ efforts are a series of last-minute court rulings upholding laws that make it more difficult for voters to cast a ballot. Such laws disproportionately impact the voters of color most likely to vote blue.

1. Out-of-precinct, out of luck

Arizona voters who vote outside of their assigned precinct will have their ballots thrown in the trash, a federal appeals court panel determined Wednesday night. The Ninth Circuit Court of Appeals upheld that decision Friday.

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The Democratic Party had challenged the policy, arguing that it violates both the Voting Rights Act and the Constitution by disproportionately impacting voters of color. Two judges voted to uphold the law, saying it “ imposes only a minimal burden.” Judge Sidney Thomas dissented, citing evidence that the practice “disproportionately and adversely impacts minority voters,” who move more frequently and are thus more likely to vote in a different precinct.

“Voting should be easy in America,” he wrote. “In Arizona, it is not, and the burden falls heaviest on minority voters.”

“Voting should be easy in America. In Arizona, it is not, and the burden falls heaviest on minority voters.”

Voters who can’t make it to their assigned precinct on Election Day can vote early in-person at any precinct in their county or mail in their ballot. Still, Arizona throws out more out-of-precinct ballots than any other state in the country, and minorities are more likely to have their ballots tossed.

“It has to do with an information gap,” explained Samantha Pstross with the Arizona Advocacy Network. “If you’re working all the time, working three jobs, you can’t follow every development in precincts moving or court cases changing the laws. And those people happen to mostly be people of color.”

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Confusion also arises because some smaller, more rural counties allow people to vote out-of-precinct at vote centers, but residents of larger, more urban counties — who also tend to vote Democratic — cannot.

Additionally, election officials sometimes misinform voters about their rights under this law. This year, Arizona sent mailers to thousands of voters in Tempe that told them the wrong precinct location.

“And we constantly hear reports of poll workers who do not tell voters that if they vote provisionally at the wrong polling place their vote will not be counted,” Pstross added. “This is a type of voter intimidation and it is unacceptable. We need to be making it easier for people to vote, not more difficult.”

2. Goodbye, Columbus

Arizona was hit with a separate federal lawsuit for shortening its voter registration period by allowing the deadline to fall on a national holiday. The Democratic Party sued to force the state to put 2,069 people onto the voter rolls who attempted to register on Columbus Day, which was supposed to be the final day of registration. There was no mail service on Columbus Day and the state’s DMV offices were closed, though voters could still register online. Republican Secretary of State Michele Reagan refused calls to extend the deadline by a single day, as did eight other states.

On Thursday, the District Court rejected a plea from the Arizona Democratic Party for one last day of voter registration, saying that while they agreed that the state broke the law by allowing the deadline to fall on a holiday, Democrats waited too long to file the lawsuit.

3. Ballot collection

Early Saturday afternoon — less than a day after the Ninth Circuit Court of Appeals temporarily enjoined Arizona’s new law that made it a felony for anyone other than a relative or caretaker to pick up and mail in someone’s absentee ballot — the U.S. Supreme Court restored it to full force.

The ballots in the few hours between the two rulings will be counted.

Before Republican Governor Doug Ducey signed the law earlier this year, third-party groups like Mi Familia Vota and Promise Arizona would call up thousands of Arizona households and offer to collect their absentee ballots. Both progressive and conservative organizations used this method, but progressive groups were more effective.

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“There are so many people who would count on groups they trust coming and picking up their ballot for them,” Pstross said. “Everyone had has things lost in the mail, so they trust these groups more than they trust the postal service. They feel it’s better to give it to someone who you know who is going to turn it in for you.”

Pstross and other voting rights advocates said they feared the policy — which will no longer be enforced for this election — could hurt someone trying to do a favor for an elderly neighbor or nursing home resident.

“We’re worried that, say, someone who works at a retirement home could show up with 50 to 100 ballots,” she said. “They’re a legitimate caretaker, but even if they’re totally within the law, a crazy person could challenge and intimidate them.”

Though absentee ballot fraud is the most common kind of voter fraud, it is still extremely rare. A massive study of a decade of U.S. voting practices found 491 absentee ballot prosecutions out of hundreds of millions of votes cast over a decade nationwide.

Appeals Court Judge Stephen Reinhardt wrote that Arizona has not shown any evidence of the widespread fraud they cited when they implemented what he called an “unconscionableban on ballot collection.

Not one single case of voter fraud in the history of Arizona elections was identified by the Arizona legislature when it enacted statutes changing its system to attempt to limit the opportunity to vote of members of minority groups — of Hispanics, African Americans, and Native Americans — as well as the poor and infirm. And not one case of voter fraud has been cited to the district court or this court by Arizona when seeking to defend its indefensible and race-based statute.

Lawyers who specialize in the voting rights of Native Americans say the law would also disproportionately harms Arizona’s tribal members, many of whom don’t have cars and don’t have access to reliable mail service.

A hearing on the permanent fate of the policy will take place in January.

4. Intimidation at the polls

A fourth lawsuit accused Donald Trump’s campaign, the Arizona Republican Party, and Trump ally Roger Stone of instigating voter intimidation and suppression.

“Trump’s calls for unlawful intimidation have grown louder and louder, and the conspiracy to harass and threaten voters on Election Day has already resulted in numerous acts that threaten to interfere with the voting rights of registered… voters,” the lawsuit said. “Untold numbers of… voters will suffer irreparable harm if the right to vote is imperiled by the same forms of virulent harassment that federal law has prohibited since shortly after the Civil War.”

But a federal district judge denied the request to block the GOP’s poll-watching activities, saying there was “no evidence of a broad conspiracy to intimidate voters.”

Trump campaign adviser Roger Stone has called for an army of untrained volunteers to patrol “Democrat-leaning cities with large minority populations” on Election Day and conduct an exit poll that they plan to use to challenge the election results if they deem them to be “rigged.” Nearly 100 people have signed up in Arizona alone.

Local GOP leaders have called for potentially problematic observation tactics as well. Attorney Tim LaSota with the Arizona Republican Party told the Phoenix New Times that observers outside polling places should call law enforcement if they observe something they think is illegal, and said they “are free in America if they feel compelled to take noninvasive steps to document a crime.” GOP official Robert Graham added that observers can “follow voters out into the parking lot, ask them questions, take their pictures, and photograph their vehicles and license plate.”

These concerns prompted the Secretary of State to issue a memo this week warning that videotaping voters outside polling places is “potentially intimidating,” as is the “excessive use of uniformed law enforcement personnel.”

This post has been updated with the U.S. District Court’s ruling in the registration deadline case, the Ninth Circuit Court of Appeals rulings in the ballot collection and out-of-precinct voting cases, and the Saturday afternoon Supreme Court decision in the ballot collection case.