‘Ballot harvesting’ debate heats up in court

State legal defenders claim practice is illegal

PHOENIX -- Arizona is entitled to make “ballot harvesting’’ a crime despite a federal law that allows anyone to deliver a letter, the state’s legal defenders are arguing.

In new legal filings, Joseph La Rue, an assistant attorney general, acknowledged there is a federal statute that spells out that federal law “shall not prohibit the conveyance or transmission of letters or packets by private hands without compensation.’’ What makes that significant is that challengers say once someone puts an early ballot into an envelope and gives it to someone else to take to the polls, it becomes “mail’’ which the state cannot regulate.

But La Rue is telling U.S. District Court Judge Douglas Rayes that those seeking to void the 2016 state statute are misreading that federal law.

He said all it does is create a “narrow exception’’ to the monopoly the U.S. Postal Service has in delivering mail. Specifically, he said it says federal law cannot bar the private delivery of mail.

“There is no general, freestanding authorization -- let alone federally protected right -- for individuals to carry any piece of mail (or, in this case, ballots that are not mail) unencumbered by state regulation,’’ La Rue said. And he said the U.S. Constitution gives states broad power to regulate how elections are conducted.

Hanging in the balance is whether the state can enforce the 2016 law that makes it a felony for anyone to handle anyone else’s voted or unvoted ballot. Violators can be sentenced to a year in state prison and a $150,000 fine.

The practice at issue involves civic and political groups who have previously gone door-todoor into neighborhoods ahead of elections to see if residents have returned the early ballots they have requested. If not, they offer to bring them directly to polling places, especially if there is a chance that a ballot put in the mail will not reach county officials by election day.

Republican lawmakers said this creates an opportunity for fraud, with those doing the collection making a decision on which ballots to deliver and which to trash based on how they believe the person voted.

Rep. J.D. Mesnard, R-Chandler, now House speaker, conceded during debate time there was no evidence anyone was engaging in such a practice. But he said what is important “is that many people believe it’s happening.’’

Rayes dismissed an earlier lawsuit challenging the law on the basis that it has a disparate effect on minorities.

This new one, brought on behalf of Rivko Knox of the League of Women Voters, argues that the Arizona statute is precluded by the federal law saying anyone can deliver mail as long as there is no charge.

La Rue, in the new court filing, called it a “novel’’ theory. But he told Rayes there is no conflict between the state law and the federal one.

“Nothing in (federal law) creates an affirmative right for individuals to collect anything, let alone other voters’ early ballots that have never been submitted to the Postal Service in the first place and are not required to be submitted by mail,’’ he wrote. And La Rue said the law creates no “express right’’ to deliver mail free of charge “but merely exempts citizens from federal penalties that otherwise would apply to the private carriage of mail.’’

La Rue also told Rayes there’s another reason to reject the challenge.

He said Knox and others opponents have known about the law since it was adopted two years ago. In fact, he said, Knox, who said she has previously helped deliver early ballots, actually testified against it when it was being considered.

“If plaintiff believed that she was suffering irreparable harm, she could have brought her lawsuit in 2016, or 2017, or even early 2018,’’ La Rue said. “But she did not, waiting instead for the 2018 election season to begin in earnest.’’

And he said that Knox offers “only the flimsiest of excuses’’ for the delay, citing a statement she made that she “got busy doing other things.’’

La Rue said it would be wrong to change the rules on early ballots this close to the election, noting they go out 10 days before the hearing he has set for Aug. 10.