En Banc Ninth Circuit Tosses Arizona Voting Rules as Discriminatory

(CN) – Two Arizona ballot-handling practices hamper the voting rights of minorities, and one state law was written to do just that, an en banc Ninth Circuit ruled Monday in a federal lawsuit filed by Democrats in the Republican-dominated state.

The Democratic National Committee, Arizona Democratic Party, and the Democratic Senatorial Campaign Committee claimed in a 2016 lawsuit that a state policy to toss out ballots cast in the wrong precincts and a law that criminalizes taking another person’s ballot to the polls violate the Voting Rights Act. The groups argued the latter was written specifically to suppress the minority vote.

Voters wait in line to cast their ballot in Arizona’s presidential primary election at a polling station in Gilbert on March 22, 2016. (AP Photo/Matt York, File)

If a voter shows up, but their name isn’t on the precinct list, the voter can cast a provisional ballot. If a ballot is later found to have been cast in the wrong precinct, which could skew results in local elections, the entire ballot is tossed, even though the votes on statewide or national elections would be legal no matter where the person voted.

Monday’s ruling reverses a May 2018 ruling by U.S. District Judge Douglas L. Rayes, though it was split. U.S. Circuit Judge William A. Fletcher wrote the majority opinion while U.S. Circuit Judges Diarmuid F. O’Scannlain and Jay S. Bybee wrote dissents.

“Arizona’s policy of wholly discarding, rather than counting or partially counting, out-of-precinct ballots, and (a state law’s) criminalization of the collection of another person’s ballot, have a discriminatory impact on American Indian, Hispanic, and African American voters in Arizona,” Fletcher, a Bill Clinton appointee, wrote.

The state will appeal to the U.S. Supreme Court, said Arizona Attorney General Mark Brnovich, a defendant in the lawsuit along with the Arizona secretary of state.

“It’s surprising the Ninth Circuit took the unusual step of overruling its own decision from 2018,” Brnovich said in an emailed statement. “I have a duty to defend the law. Our office will appeal to the Supreme Court and continue to protect the integrity of our elections.”

Brnovich defended tossing out provisional ballots in part by claiming the burden wasn’t undue, but very small – affecting far fewer than 0.1% of voters.

Party lines in Arizona are split largely by race, with the Republican Party dominated by white voters and the Democratic Party made up of minorities, so any law or policy aimed at affecting the Democratic vote – which the majority says the third-party delivery ban was written to do – would inherently affect minorities more than white voters.

Minority voters tend to move more often, so they are more likely to turn up at the wrong precinct to vote or not appear on voter rolls. They’re also more likely to need help bringing their ballots to the precinct and more often ask third parties for help, the plaintiffs argued.

The panel found Arizona’s provisional ballot policy doesn’t have to affect a lot of voters to violate the Voting Rights Act.

“As long as an adequate disparate impact is shown, as it has been shown here, and as long as the other prerequisites … are met, each individual in the affected group is protected under Section 2,” Fletcher wrote.

In his dissent, O’Scannlain said he didn’t see the requirement to vote in one’s own precinct creates a burden in the first place.

“The majority offers no explanation for how or why the burden of voting in one’s assigned precinct is severe or beyond that of the burdens traditionally associated with voting,” the Ronald Reagan appointee wrote.

Bybee, a George W. Bush appointee, also dissented. He said that taking into account long-held and widely adopted measures, Arizona’s rules are well within the U.S. traditions as a democratic republic.

The Arizona Secretary of State’s Office, Democratic National Committee and Arizona Democratic Party did not immediately respond to a request for comment.

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