PHOENIX – A federal appeals court is going to give a Democratic activist one last chance to be able to argue that she and others should be able to “harvest’’ ballots in the upcoming general election.
The judges of the 9th Circuit Court of Appeals has set an Oct. 3 hearing on the contention by Rivko Knox and her attorneys that the 2016 Arizona law making the practice a felony violates both her constitutional rights and the rights of people to have their ballots taken by others to polling places. More immediately, Knox wants the judges to at least block the state from enforcing the ban while they consider her legal arguments.
But Knox faces an uphill battle.
Just last month U.S. District Court Judge Douglas Rayes brushed aside her contention that, in collecting early ballots from those who had failed to mail them back she was “facilitating’’ the voters’ free speech. He was no more impressed by her claim that an individual has a First Amendment right to provide free delivery of mail.
Knox had no better luck with a claim that Arizona, in restricting the practice, was infringing on the rights of the federal government to determine who can — and cannot — deliver mail.
But attorney Spencer Scharff is arguing to the appellate judges that Rayes missed long-standing legal precedents on the issue of federal preemption in dismissing the claim. And he wants the judges to conclude that made it illegal for lawmakers to approve ballot-harvesting the ban in the first place.
A majority of Arizonans request and get early ballots. But some people fail to return them on time, whether forgetting to drop them in the mail ahead of time or simply forgetting they had the ballots in the first place.
Until 2016 various community and political groups had fanned out to neighborhoods close to election day to ask people if they had returned their early ballots. If they had not, the volunteers agreed to take the sealed envelopes to polling places to ensure they got there by the 7 p.m. deadline on election day.
That year the Republican-controlled Legislature approved HB 2023, making that practice a felony, subject to a year in prison and a $150,000 fine. Proponents said they were concerned about the prospect of fraud, though they could produce not a single example.
Federal courts rebuffed an earlier challenge based on claims by the state and national Democratic parties that the ban had a disparate impact on minority communities. That left Knox to try a different approach.
Scharff pointed out that the federal government has the exclusive right to deliver mail, with federal law making it illegal for others to get into direct competition with the U.S. Postal Service.
But he said Congress, which has exclusive purview over the mail, carved a specific exemption in 1845 allowing private individuals and carrier to deliver letters as long as that is done “without compensation.’’
The way Scharff sees it, once Congress decided that there should be no penalty for private individuals delivering the mail, state lawmakers were similarly forbidden from imposing their own.
There is U.S. Supreme Court precedent for that argument. And it involves Arizona.
In 2010 state lawmakers enacted a series of measures designed to give police more authority to detain and question those they suspected were in this country illegally. SB 1070 also had other provisions, including one making it a violation of state law for someone not here legally to seek employment.
But Justice Anthony Kennedy, writing the majority ruling, pointed out that when Congress enacted its own laws on immigration “decided it would be inappropriate to impose criminal penalties on aliens who seek or engage in unauthorized employment.’’ And that decision not to impose federal penalties, he said, made it illegal for states to do so on their own.
Scharff pointed out that Rayes did conclude concluded that once an early ballot is completed and put into the envelope it “satisfies the federal definition of ‘letter.’ ‘’ And if unmailed early ballots are truly “letters,’’ he argues, the state lacks authority to regulate how they can be delivered.
But Rayes was unwilling to make that legal leap, concluding there is “little evidence’’ that Congress, in creating an exception to the ban on private delivery of mail, “intended to foreclose state laws like HB 2023.’’
If the appellate court agrees Scharff on federal preemption, that would void the state law and eliminate the need for him to pursue the constitutional claims. But he is ready to argue that point, too.
“Letter delivery constitutes speech-facilitating conduct, with is protected by the First Amendment,’’ he is telling the appellate judges. And what’s worse about the state law, Scharff said, is that it criminalizes only the delivery of certain kinds of letters – early ballots – while not imposing similar restrictions on other types of mail delivery.