Ninth Circuit Considers Arizona Ballot Delivery Law

(CN) – Attorneys for a Phoenix-area election volunteer and the state of Arizona faced off before the Ninth Circuit Wednesday over a state law restricting who can deliver ballots for people who can’t get out to vote.

A recent Arizona law forbids most non-family volunteers from delivering ballots to polling places — something that used to be a widespread practice. According to volunteer poll worker Rivko Knox and her attorney, Spencer Scharff, the 2015 law conflicts with federal postal laws that allow deliveries like the ones Knox hopes to make.

The case hinges on several aspects of federal postal law, which allows some private carriers to deliver mail when they are engaged in official duties and using a postal route. The state argued that volunteer poll worker deliveries don’t meet those criteria, but Knox’s attorneys say they do.

Federal postal laws are very specific about what mail can be carried by anyone outside the postal system, whether they’re FedEx drivers or polling place volunteers. For example, private carriers are allowed to transport mail that weighs more than 12 ounces and urgent letters that would “lose their value” if not delivered quickly, Scharff said.

“That’s all private carriers, whether it’s UPS, FedEx or Ms. Knox who is a volunteer private carrier,” Scharff said. “We normally think of private carriers as commercial private carriers, but it would apply equally to anyone like a courier for a private messenger service. All of those carriers are comprehensively and have been comprehensively regulated since the founding of the nation.”

Assistant Arizona Attorney General Andrew Pappas argued two main points – that ballots aren’t mail, and that even if they were, Knox couldn’t deliver them because she wouldn’t be engaged in official duties.

“At least nine other states have limited who may collect a voter’s early ballot, but no court has held that the private-hands exception pre-empts any of those laws,” Pappas said. Carriers on military bases and state department couriers are a couple of examples of allowed “gratuitous,” or unpaid, private carriers, Pappas said.

“It’s persons who are allowed to transmit U.S. mail and are engaged in official duties. Miss Knox is not,” Pappas said.

Those official duties must be defined by law, and although state laws govern the duties of poll workers, those duties do not explicitly include carrying mail to the polls, according to Pappas. Poll workers can’t even legally put a stamped ballot in the mailbox for someone, he told the panel.

“Miss Knox has no right under federal law or any law to carry other people’s mail, whether gratuitously or otherwise … I think that’s the heart of it,” Pappas said.

Postal laws don’t apply anyway, because Knox doesn’t want to deliver mail, Pappas added.

“Simply put, an early ballot isn’t mail simply because it could be mailed,” he said.

The panel recessed after the half-hour arguments to consider the case.

The appeal stems from a 2016 lawsuit filed by the Democratic National Committee and the Arizona Democratic Party. In May, U.S. District Judge Douglas L. Rayes ruled that the 2015 law didn’t impose an undue burden, which Knox appealed.

U.S. Circuit Judges Sidney Thomas, Carlos Bea and Sandra Ikuta sat on the panel.

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