Judge: Arizona ballots must be received, not just postmarked, on Election Day

PHOENIX – Arizonans won't be able to wait until the last minute to drop their early ballots in the mail.

In a deal reached Thursday, two groups who challenged the law will not pursue their claim that is is unconstitutional to refuse to count ballots that have not arrived in the mail by 7 p.m. on Election Day. They had asked a federal judge to say that it's the postmark that counts.

In exchange, Secretary of State Katie Hobbs has agreed to do more voter education to help ensure that the ballots do either get mailed in time to meet the deadline or that they are dropped off at polling places.

And Hobbs also is required, under the terms of the deal, to specifically look for ways to "expand early voting opportunities in Hispanic and Latino, Native American and rural communities.” But some of that is contingent on Hobbs, a Democrat, getting the Republican-controlled legislature to provide the funding – or at least authorization to use federal grant money – specifically to reach out to those communities.

Central to the litigation is the wide use of mail ballots, with about 1.9 million votes cast that way in the 2018 election out of about 2.4 million ballots cast.

Attorney Sarah Gonski said people who get early ballots can bring them to a polling location on Election Day. She said that personal drop-off option can be "more time-consuming and burdensome” for rural voters who often live many miles from a drop-off location, as well as Hispanic and Latino voters who she said have difficulty obtaining transportation or leaving work during the hours when county recorders' offices are open.

The result, Gonski said, is about 90% of people who voted with a mail ballot returned it through the U.S. postal service. But if they don't get them in the mail on time – and it can take days for delivery – the votes don't get counted.

In 2018, she said, Maricopa County alone rejected 1,535 ballots for arriving late.

She had asked U.S. District Judge Dominic Lanza to declare that any ballot postmarked by 7 p.m. on Election Day had to be counted if it was received within five business days following.

In signing the settlement, Hobbs denied that the deadline violates any constitutional rights. But the deal not only avoids what could have been a protracted legal battle but also gives her an opportunity – and potentially some funding if lawmakers approve – to do more outreach to ensure that people get their ballots returned in time to be counted.

Some of that is totally within her control as the state's chief elections officer.

For example, she committed to do more voter outreach in multiple languages, informing people about the early ballot process and the deadlines.

Hobbs told Capitol Media Services that she already was planning to do some of that already. The secretary noted that she had asked to conduct this year's election solely by mail, what with the COVID-19 outbreak.

"The legislative response to that was, 'We think you should let voters know about their options to vote by mail,' “ Hobbs said. "And that's what we're planning to do.

But there's more in the agreement, including her promise to ask the legislature to let her use her allocation of money from the federal Coronaviruis Aid, Relief and Economic Security Act to help counties pay for things like more drop-off boxes for mail ballots in Hispanic, Latino, rural and Native American communities, more early voting locations, and "mobile early voting units.”

"Counties can start early voting 27 days before the election,” Hobbs pointed out. Providing things like curbside voting and secure drop boxes, she said, provides additional opportunities for people to cast ballots "so folks don't have to rely on the mail.”

Mobile voting, however, is a newer concept.

Hobbs said Pinal County now operates a mobile voting unit, what essentially looks like a food truck, which can be used for everything from registering people to vote to being a secure place to drop a ballot. She said it makes sense for other counties to consider that option in light of the pandemic.

Aneesha McMillan, representing Priorities USA, one of the groups that sued, said her organization considers the settlement a victory even though it did not get what it asked for, meaning moving back the deadline for ballots to be returned.

"The biggest issue for us that we were concerned about it is awareness in the communities that are listed,” she told Capitol Media Services. And McMillan said that "ballot suppression” can take many forms, including keeping certain communities from being informed of their options, especially in a language that they are most familiar.

The plaintiffs also got something else that could help them in a future challenge.

Hobbs agreed to study how many votes were not counted in the past three elections because they missed the deadline as well as the "feasibility of implementing a postmark deadline.” That includes a requirement to see how how other states have successfully moved to such a deadline.

Gonski, in filing suit, said there are public policy reasons to give people until Election Day to drop their ballots in the mail.

She cited the 2016 presidential preference primary where more than 72,000 Republicans cast a ballot saying they wanted Marco Rubio to be the GOP nominee. Only thing was that he quit the race days before, Gonski said, meaning all those were votes for "a ghost candidate.”

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