PHOENIX — Rebuffed by the Arizona Supreme Court, the state Republican Party is making a new bid to sharply curtail who can cast a ballot by mail.
But this time the GOP is lowering its goals, seeking to wipe out much — but not all — of early voting.
Legal papers filed in Mohave County Superior Court contend the Arizona Constitution absolutely requires ballots be cast in person and only on Election Day. Everything else, says attorney Alexander Kolodin, is illegal.
He made pretty much the same arguments earlier this year to the state’s high court. But the justices rejected his bid to bypass the normal legal process and jump directly to them, telling him to make his case to a trial judge.
That, in essence, is what the new lawsuit does.
At the heart of the litigation is a provision of the Arizona Constitution saying ballot measures have to be approved or rejected by voters “at the polls.”
“At the time Arizona’s constitution was ratified, it was obvious to the Arizona Supreme Court that the plain meaning of ‘the polls’ did not include people’s homes but rather meant designated polling places with voting booths and the like,” Kolodin wrote.
He said the same logic about voting on initiatives also applies to voting on arguments.
And if that argument doesn’t sway the court, he pointed to another section of the state constitution that says “secrecy in voting shall be preserved.”
Kolodin contends that can only happen if someone goes to a polling place, is handed a ballot by an election worker, fills it out, and then deposits it in an official box. That means the only people who get to handle and see that ballot are official election workers.
By contrast, Kolodin said, early ballots are handled by postal workers and others who, if they wanted to, could make lists of who has received them.
But his arguments about why voting by mail can lead to electoral mischief go deeper than that.
Part of that goes to the ability to find out not just who requested an early ballot but who already has returned it. That information is made available so politicians don’t waste time and money sending campaign materials to those who already have mailed back their ballots.
“If you know the voter is going to be present with their ballot in their home, and you know they haven’t returned it, you can pull up all the other information on the voter, you can tailor a message exactly to them, walk up to the door of that voter, and you can pitch them, ask them to fill out their ballot right then and there and watch them put it in the mailbox,” he told Capitol Media Services.
“That’s exactly what the framers (of the state constitution) wanted to prevent,” Kolodin said. “They viewed that, somebody being with the voter and pressuring them at the time of voting ... as the undue influence that was to be avoided.”
He said that kind of pressure could come from an employer or a union seeking to ensure people vote a certain way.
“Well, we’ve got data on who’s returned their ballot,” Kolodin said, including name and address and the kind of research that can be done with that information. “So we send a few of our union buddies by to say, ‘Hey, by the way, Mr. Voter, we know you haven’t returned your ballot and you have it somewhere in there, here’s the union line and you’d better vote that line, and we’ll just stand here to make sure you cast your ballot.’”
That, Kolodin said, can’t happen if the voter has to go into a voting booth on Election Day — alone.
His original filing at the state Supreme Court sought to wipe out all forms of early voting.
The new version, however, would allow counties to continue to mail ballots to people who have specific excuses, like being elderly, in a nursing home or planning to be away from home on Election Day.
That’s the way the law was before 1991 change in law that year which permits any Arizona voter to request an early ballot without having to first provide some reason.
But allowing some forms of early voting to continue could undermine his basic arguments that the legislature is constitutionally precluded from allowing any form of early voting at all.
Kolodin said he will address that question when the case goes to court.
In the last general election, close to 90% of ballots were cast early. It is not known how many of those early votes would no longer be allowed in the future if Kolodin succeeds and only people with specific excuses could still vote by mail.
Secretary of State Katie Hobbs, who was named as a defendant in both the original lawsuit and the new filing, has called the litigation a “ridiculous attempt to determine our elections,” saying it is an attempt by the state Republican Party “to make it more difficult to vote.” Hobbs is a Democratic contender for governor in this year’s race.
No date has been set for a hearing.