WASHINGTON, D.C. — On Wednesday, Dec. 7, three judges of the Arizona Court of Appeals heard oral argument in a case brought by the Arizona Republican Party and its chairwoman challenging the state’s no-excuse mail-in voting law. Earlier this year, an Arizona trial court rejected the Republicans’ request for relief, which they appealed to the Arizona Court of Appeals. The attorney representing the Republican appellants will be referred to as the appellants’ attorney. The attorney representing Arizona Secretary of State Katie Hobbs (D) and the state of Arizona will be referred to as the state’s attorney. The attorney representing the Democratic intervenors (Arizona Democratic Party, Democratic National Committee, DSCC and DCCC) will be referred to as the Democratic intervenors’ attorney.
The appellants’ attorney began by stating that the Republicans are not “challenging mail-in voting overall,” but only the “current system” of mail-in voting “where [the] restricted zone is not secured around voter.” A judge asked if the appellants’ challenge is a facial challenge — a challenge that argues that the statute is unconstitutional as written as opposed to as applied — and the appellants’ attorney agreed. The appellants’ main argument was that the current mail-in voting system violates the Arizona Constitution because the system does not, in the Republicans’ view, preserve “secrecy.” The appellants’ attorney argued that Arizona’s mail-in voting law violates the “secrecy” requirement found within the Arizona Constitution, a provision in the Arizona Constitution stating that “secrecy in voting should be preserved”. A judge explained that the state constitution mandates secrecy but allows the Legislature to determine how secrecy is implemented. The appellants’ attorney responded to the judge’s question by arguing that the judge’s reading was not “an accurate reading of [the Arizona Constitution]” A judge then asked if the attorney’s position would be that “no one can assist a voter.” To this, the appellants’ attorney replied: “I wouldn’t deign to argue that in perfect adherence to the Arizona Supreme Court’s early territorial decision would be in conformity with the Equal Protection Clause when you’re dealing with a disabled voter or things like that. I don’t think that was necessary to extend the argument in this exceptional case where there was another constitution.” A judge then asked about military voters and why they would be permitted to vote by mail, but others couldn’t. To this, the appellants’ attorney responded: “First of all, with a normal citizen who’s not in the military…there is no civil or military power, actually…You have to because remember, this was World War One era, and so that you can vote without anybody seeing your ballot. This is how seriously they took it.” He then followed up, saying that “the reason that it’s okay with military is because one constitutional provision is going to get violated either way.”
The state’s attorney began speaking and a judge immediately asked him if the Purcell principle and laches (a legal principle that requires plaintiffs to make their claims within a reasonable time frame) arguments that the state made below still apply given that the 2022 midterm elections have passed. To this, the state’s attorney argued that the trial court erred in the ruling below and that the Purcell principle should apply in state court when it historically has only been applied in federal court. As for the laches argument, he responded that the appellants waited 30 years to bring their claim as the law has been in place since 1991. He stated that the preliminary injunction should have been denied on the basis of laches and Purcell grounds to begin with. A judge asked how the state responds to the appellants’ argument that ending mail-in voting is the only way to ensure it is not abused and that “prohibiting someone from doing something” does not go far enough. He responded: “That is how government works” and explained that this is how laws are structured. He continued to explain that the current system is not faulty by stating, “I believe that the system that currently exists protects secrecy to the extent that it can and to impose these additional burdens and to add additional words into the constitution to reach the result that the appellants urge is not the way to do this.” A judge then asked the state’s attorney about voter assistance: “Does Arizona law put any restrictions on when a voter can ask for assistance? Do they need to make any showing or is it just a voter says I’d like someone else in the booth with me?” To this, the state’s attorney responded that, if “a voter walks into a polling place, for example, and says I need assistance filling out my ballot, it’s a lot like federal law as it relates to the [Americans with Disabilities Act]. The question is not why, it’s how can I help you, and that’s how it should be. We should be encouraging people who need assistance to ask for it and to get it.”
The Democratic intervenors’ attorney argued that the appellants clearly abandoned their original argument that the “Arizona Constitution requires all voting to occur in person at a polling place on Election Day.” The Democratic intervenors’ attorney contended that it should be straightforward for the court to decide the issue of secrecy in mail-in voting, saying: “The court doesn’t need to go looking or digging through law review articles or territorial legislation or irrelevant First Amendment cases to find some hidden meaning that’s not readily apparent from the text restructure of the Arizona Constitution itself. In other words, the Framers are not in the business of height and easter eggs in our governing charter, yet I think that’s precisely what these plaintiffs are asking this court to do.”
The appellants’ attorney ended oral argument by stating that “perhaps [the appellees] think that the Framers’ views are antiquated [and] they should be changed. The good news is the voters have a very easy way to do that: They can amend the Constitution. The Framers made it very easy to do, but unless or until that prevision is a method, it is the law.”