WASHINGTON (CN) — Get-out-the-vote groups have used ballot collection since at least 2002, but if they do so Tuesday, they face up to a year in prison after the Supreme Court stayed an eleventh-hour injunction Saturday.
Arizona criminalized the ballot collection earlier this year by revising section 16-1005 with enactment of House Bill 2023. The change makes anyone guilty of a class-6 felony if he "knowingly collects voted or unvoted early ballots from another person."
In addition to one year in prison, violators of the law face a $150,000 fine.
Though a federal judge refused to block the law, and a divided panel of the Ninth Circuit affirmed last month, the federal appeals court agreed last week to rehear the case en banc.
With Election Day less than a week away, the Ninth Circuit issued the injunction against the enforcement of H.B. 2023 on Friday.
Chief Judge Sidney Thomas explained in the 9-page order that the election-eve injunction was proper because it "does not affect the state's election processes or machinery."
"The injunction pending appeal sought by plaintiffs would not change the electoral process, it simply would enjoin enforcement of a legislative act that would criminalize the collection, by persons other than the voter, of legitimately cast ballots," Thomas wrote.
Thomas added that "the injunction at issue here does not involve any change at all to the actual election process."
"That process will continue unaltered, regardless of the outcome of this litigation," he continued. "The only effect is on third party ballot collectors, whose efforts to collect legitimate ballots will not be criminalized, pending our review. No one else in the electoral process is affected. And no electoral process is affected."
Arizona Solicitor General John Robert Lopez IV petitioned for a stay, and the U.S. Supreme Court delivered on Saturday.
The brief order notes only that the Friday injunction "is stayed pending final disposition of the appeal by" the Ninth Circuit.
The rehearing en banc is scheduled for the week of Jan. 17, 2017, in San Francisco, California.
Leslie Feldman and several other registered Democratic voters in Maricopa County, Arizona, brought the underlying challenge in Arizona. They say H.B. 2023 hurts minorities, unjustifiably burdens the right to vote, and interferes with the freedom of association.
Feldman's response brief with the Supreme Court noted that H.B. 2023 "makes one of the most popular and effective methods of minority voting in Arizona a crime."
Ballot collection over the years has allowed thousands of voters to rely "on friends, neighbors, advocacy and political organizations, and campaigns to collect and deliver their early ballots to ensure they arrive by the 7 p.m. Election Day deadline," the brief states.
"The largely unrefuted evidence shows that HB2023 imposes severe burdens on some voters and that these burdens fall disproportionately on minority voters," it continues. "To justify these burdens, Arizona has offered nothing more than a hollow incantation of 'voter fraud,' even though there is not a shred of evidence linking ballot collection to voter fraud and Arizona has been unable to provide a logical explanation as to how HB2023 will prevent fraud. The en banc Ninth Circuit was therefore amply justified in enjoining HB2023 through the upcoming election."
The challengers are represented by Marc Elias with Perkins Coie.
Feldman is also the lead plaintiff in a second challenge to yet another Arizona election law — this one requiring those who vote in person to cast their ballots in the precincts where they are registered.
On Wednesday, the same day that the Ninth Circuit took up Feldman's other challenge en banc, the Ninth Circuit refused to grant Feldman an injunction against this law.
The Ninth Circuit agreed to rehear this case en banc Friday as well. The order granting such relief notes only that "Judges Kozinski and McKeown did not participate in the deliberations or vote in this case."
This rehearing en banc is also scheduled for the week of Jan. 17, 2017, in San Francisco, California.
In a separate order, the court again denied Feldman an injunction. "The en banc court declines to issue any order that would potentially disrupt procedures in the upcoming election," the order says citing the 2006 decision in Purcell v. Gonzalez.
Chief Judge Thomas wrote a separate opinion dissenting in part, joined by three colleagues on the court.
"I would hold argument and decide the appeal prior to the certification of results for the present election," the dissent says. "As I explained in my dissent, qualified voters have been, and will continue to be, disenfranchised by Arizona's refusal to count legitimate ballots cast out-of-precinct. There is no reason why these legitimate votes should not be counted in this election, particularly when the votes are collected and available for election officials to tabulate."