Arizona’s Republican Party is relying on ‘errant’ language in the Arizona Constitution in what lawyers describe as a long-running challenge to overturn the state’s 31-year-old early voting law .
A trial filed earlier this week by AZGOP and one of its officials argues that a arrangement in the constitution stating that “voters may cast ballots” means that voting must be done in person, not by mail, as permitted by Arizona’s No Excuse Early Voting Law. Party attorney Alexander Kolodin is asking the Arizona Supreme Court to directly accept the case and declare the early voting law illegal. This would require most of the more than 80% of Arizona voters who use early voting to vote in person for the August primary and November general elections.
Two lawyers who spoke with the Arizona Mirrorhowever, said AZGOP’s argument had serious flaws.
The provision Kolodin cites is not actually in Article 7 of the Arizona Constitution, which covers suffrage and elections. It is rather in article 4, on the legislative department. More specifically, this wording specifically relates only to voting for citizens’ initiatives and referendums. No similar wording exists in Article 7.
Josh Bendor, a lawyer with the Osborn Maledon law firm that handles constitutional litigation, described the provision as “parasitic language” that provides little guidance. Bendor said if the constitution framers who drafted this provision intended to provide specific instructions on how ballots should be cast, they likely would have done so in the section that dictates the rules for the elections.
Kolodin argued in his lawsuit that while the language he cites appears only in the section on citizens’ initiatives and referendums, it is not strictly limited to those contests because the constitution requires that such ballot measures be decided “at the next regular general election”. Alternatively, if the Supreme Court rejects the argument as a whole, Kolodin suggested that justices limit voting on initiatives and referendums to in-person voting, even if they don’t vote on other contests.
Bendor noted that the provision says voters “may” voice their approval or disapproval at the polls, not that they “must” do so. That, he said, doesn’t mean voters can’t decide ballot measures another way.
“They are really torturing the text there. And I think the court will see through that,” Bendor said.
Paul Bender, a law professor at Arizona State University and a longtime expert on the Arizona Constitution, said some sections of the Constitution suggest its framers viewed voting as occurring in person. in a single day, as opposed to mailing over 27 days, as is now permitted. But courts should nonetheless reject AZGOP’s arguments, he said.
On the one hand, Bender noted that a arrangement in the article on elections and suffrage states that voting shall be by ballot “or by any other method prescribed by law”. Bender said that gives the legislature wide latitude in determining how the vote should be conducted. He said the Constitution’s guarantee of free and fair elections, and its prohibition on the government’s ability to “impede the free exercise of the right of suffrage” should also be interpreted to allow postal voting.
“To prohibit or strictly limit postal voting would clearly prevent the free exercise of the right to vote,” Bender said.
Both Bender and Bendor said Kolodin probably read too much into “at the ballot box” language. By stating that voters can express their approval or disapproval at the polls, they said the framers of the constitution were probably only saying that voters would be the ones to decide these issues at the election. The language in the constitution describing voting as being in person and on Election Day probably indicated nothing more than the fact that this was how all voting was conducted at the time.
“There is nothing in the text of the Constitution … that specifically forbids mail-in voting,” Bender said.
Kolodin is asking the Supreme Court to take the case outright and bypass the lower courts, saying the issues are urgent because they need to be resolved in time for this year’s election. Lawyers were skeptical that the judges would grant this request, given that the law in question is 31 years old.
The 1991 legislature passed a landmark law allowing any Arizonan to vote early, and in 2007 the state implemented its permanent early voting roster. In subsequent elections, more than 80% of voters cast regular advance ballots, mostly through mail-in ballots that are either returned by mail or in person.
As the lawsuit notes, Arizona passed a more limited and traditional mail-in ballot law in 1925 that violates the constitutional right to a secret ballot — but does not say why that law would not violate the constitutional provision requiring that voting takes place at the ballot box.
The Legislature also passed an absentee voting law in 1918 for Arizonans serving in World War I. The lawsuit does not cite this law.
Kolodin did not return a message from Arizona Mirror search for comment. The AZGOP lawsuit also raises a number of other election-related issues in addition to challenging the early voting law, including a claim that the use of drop boxes for early voting is unconstitutional. .
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