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Ninth Circuit reinstates Election Day deadline to correct unsigned ballots in Arizona

The Arizona Democratic Party claimed an Election Day deadline to correct missing ballot signatures violated voters' constitutional rights.

(CN) — Arizona can throw out mail-in ballots that haven’t been signed by Election Day, following a Ninth Circuit panel’s reversal of a 2020 permanent injunction requested by the state's Democratic Party.

Voters across the Grand Canyon State have been able to vote by mail since 1991. Today, nearly 70% of Arizonians do so, submitting ballots during the last four weeks before an election with a signed affidavit. The signature requirement is printed on the front and back of the envelope in English and Spanish.

After Navajo Nation sued Arizona in 2018 over varying dates to correct unverified signatures, the Legislature imposed strict deadlines mandating the ballots be corrected within five days of the election. While not explicitly addressed by the law, Arizona’s secretary of state and attorney general enforced an Election Day deadline on missing signatures.

According to the state, the former is an issue of verification, while the later is an error of voter negligence.

Rather than letting voters sign their original ballot, Arizona sends a provisional ballot for a second chance to cast their vote. Therefore the state argued it isn't possible to correct the issue after Election Day.

The Arizona Democratic Party sued the state in June 2020 claiming the deadline for missing signatures denied voters due process and violated their First and Fourteenth Amendment rights. After a federal judge ruled in favor of the Democrats, the state appealed to the Ninth Circuit and oral arguments took place in July 2021.

On Wednesday, a three-judge Ninth Circuit panel reversed the injunction and sided with the state.

“The state had an important regulatory interest in reducing the administrative burden on poll workers, especially during the busy days immediately following an election. In light of the minimal burden on the voter to sign the affidavit or to correct a missing signature by Election Day, the state’s interest sufficiently justified the election-day deadline,” wrote U.S. Circuit Judge Susan P. Graber, a Bill Clinton appointee, for the majority. 

In the 20-page opinion, Graber described the state’s examination of ballots and efforts to contact voters who forgot to sign them as “a measure of grace.” A voter who learns their ballot signature was missing at 7:01 pm after polls close on Election Day is simply out of luck.

While the majority found Arizona’s rule constitutional, Graber clarified the opinion “merely sets a floor. Nothing in our opinion should be construed as dissuading Arizona, or other states, from providing a more generous deadline than the Constitution requires.”

U.S. District Judge Kathryn Vratil, a George H.W. Bush appointee sitting by designation from the District of Kansas, joined Graber in vacating the injunction and remanding with instructions to enter judgment in favor of the state.

In an 18-page dissent, Senior U.S. Circuit Judge A. Wallace Tashima took the state rule in context with legislative efforts nationwide to restrict voting, making this what he believes is yet another blatant move of voter disenfranchisement.

“The state’s refusal to provide a post-election cure period for ballots with missing signatures, consistent with the cure period it provides for other deficient ballots, disenfranchises voters after they cast their ballot as surely as laws that restrict voters from casting their ballots in the first place,” the Clinton appointee wrote.

“The majority’s decision is particularly troubling in these times of unprecedented assaults on voting rights,” Tashima concluded, citing a Brennan Center survey counting 25 states that restricted voting access over the last decade.

Members of the appeals panel took jabs at one another between the two opinions, with the majority characterizing the dissent as irrational and the dissent describing the majority as an ostrich hiding its head in the sand.

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