voting mailbox
Arizona’s No-Excuse Voting By Mail System Is Subject Of AZGOP Challenge

June 5, 2022

By Terri Jo Neff |

A judge in Mohave County is expected to rule by noon on Monday whether Arizonans could lose their ability to vote by mail without providing an excuse.

Judge Lee Jantzen is being asked by the Arizona Republican Party and its chair, Kelli Ward, to declare the state’s no-excuse voting by mail “system” unconstitutional despite the fact the system has been in effect for three decades. The judge heard arguments last Friday to issue a preliminary injunction to ban no-excuse voting by mail effective with the upcoming Nov. 8 General Election.

About 85 percent of all ballots cast in the 2020 General Election—including Ward’s ballot—were mailed out to voters in advance of the election. But the AZGOP contends the law passed by the Legislature in 1991 violates the constitutional requirement that Arizona’s elections be held in such a way to ensure “secrecy in voting.”

The lawsuit argues the only ballots which should be accepted through the mail are those from voters who provide a satisfactory excuse—such as military service, a disability that makes it a burden to vote in person, or being out of town on Election Day.

(The AZGOP acknowledged in their May 17 lawsuit that there is not enough time to outlaw no-excuse voting for the Aug. 2 Primary Election as ballots are in the process of being printed so they can be in voters’ mailboxes in early July.).

Attorneys for Arizona Secretary of State Katie Hobbs and several county election officials argued to Jantzen that there is nothing unconstitutional with Arizona’s no-excuse voting by mail system. They also advised the judge of the practical problems with trying to ban a practice after 30 years without much advance notice to voters and those responsible for running each county’s elections. 

One such problem involves the Active Early Voter List, from which ballots are sent to voters who have signed up to receive them by mail. Those voters recently received a reminder notice from their respective county recorder with the 2022 election schedule and confirming the voters will receive ballots by mail for the primary and general elections.

The AZGOP argued to Jantzen that counties can be forced to accommodate changes in time for the General Election, even if it requires hiring thousands more poll workers and election staff across the state, scrounging to find enough voting machines and other election-related equipment, and locating facilities which can accommodate millions more in-person voters than have turned out in years. 

That argument was pushed back on during Friday’s hearing by an attorney for seven of Arizona’s 15 county recorders responsible for the voting by mail process and county election directors who are responsible for election day voting and ballot tabulation.

“They cannot conjure polling places or poll workers out of nothing,” Karen Hartman-Tellez of the Maricopa County Attorney’s Office told Jantzen.

Whatever order Jantzen issues in response to the AZGOP’s preliminary injunction request is likely to be appealed. But even if no-excuse voting by mail is allowed to take place this year, the AZGOP’s constitutional challenge does not die.

Instead, the litigation will move forward to a trial under civil court rules, same as any other lawsuit.

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