How the Supreme Court Turned a Community Leader into a Criminal
In 2016, the Arizona Legislature passed a ban on ballot collection that was aimed at decreasing electoral participation by minorities, especially among the state’s large Latino community. The new law made it a felony to collect and return another person’s completed mail-in ballot unless they were their relative, household member or caregiver.
In 2022, Guillermina Fuentes, a 66-year-old grandmother, member of the school board and former mayor of San Luis, Arizona, became the first person convicted under this new law, as revealed by Type Investigations. Her crime was helping four eligible voters return their lawfully cast ballots to election officials to be counted. As a result of that assistance, Fuentes — who had no criminal record — spent 30 days in jail in near solitary confinement. She was also placed on probation for two years during which time she cannot vote.
What happened to Fuentes was wrong, but it was not random. To understand it, you need to first understand a little history.
The law she was prosecuted under, House Bill 2023, was enacted in the wake of the U.S. Supreme Court’s 2013 decision in Shelby County v. Holder. That was the case that gutted a key provision of the Voting Rights Act (VRA) that prevented states with histories of racial discrimination in voting from enacting voting law changes without first having them reviewed and “precleared” to ensure that the new law would not make it harder for voters in minority communities to exercise their right to vote.
Arizona was one of only nine states that was subject to statewide preclearance, meaning that — before the Supreme Court’s decision in Shelby County — any voting law needed the U.S. Department of Justice (DOJ) or a federal court to sign off before it could take effect. Arizona was on that list due to its historical discrimination against Latino and Native American citizens.
For example, in 1970, Congress banned literacy tests for voting nationwide. Arizona and other states seeking to maintain literacy tests sued and lost in the Supreme Court that same year. Despite this loss, it wasn’t until 1972 that Arizona finally repealed its literacy test.
Yuma County, where San Luis is located and Fuentes lives, is covered by Section 203 of the VRA because of its high proportion of citizens with limited English proficiency. Section 203 requires that language assistance is provided to help access voting in areas with a certain number of non-English speakers.
As of 2020, the city of San Luis was 98% Latino. The median income was $22,000. The city has no mass transit and many households have no cars. Geographically, it is a three-hour drive from Phoenix and is closer to Mexico than any other city in Arizona. Perhaps most importantly, home delivery is not provided by the U.S. Postal Service, and a major highway separates almost 13,000 residents from the nearest post office. As a result of all of this, many San Luis voters often had to rely on members of their communities to help them deliver their mail-in ballots if they wanted them to be counted.
It is no surprise that in 2011, two years before Shelby County, San Luis was ground zero for Arizona’s first attempt to limit the collection of absentee ballots. Again, the target was not random.
Republican state Sen. Don Shooter sponsored Senate Bill 1412 after his close 2010 election when he badly underperformed with Latino voters. Shooter would later be expelled from the Republican-controlled Arizona Legislature in 2018 over sexual misconduct allegations. But, in 2011 he was focused on limiting ballot collection in San Luis as the chairman of the Yuma County Tea Party. Demonizing Latinos living near the Mexico border was the Tea Party’s bread and butter.
As a DOJ memorandum from this 2011 incident summarized:
S.B. 1412 was targeted at voting practices in predominantly Hispanic areas in the southern portion of the state near the Arizona border. Shooter and others were mainly concerned about practices in San Luis, which is a border town in Yuma County, but concerns were also raised by legislators aligned with the Tea Party who represent the southern parts of Pima and Cochise Counties. The purpose is to prevent illegal immigrants, persons with green cards who are ineligible to vote, and other persons who are not registered voters from participating in the electoral process.
At the time, both the FBI and the Republican Arizona secretary of state’s office investigated voting practices in San Luis and “found no evidence of wrongdoing.” The secretary of state had monitored elections in Yuma County during the 2009 elections and didn’t find anything wrong then, either. Nevertheless, the DOJ noted that “the allegations were picked up by Tea Partiers and Republican candidates in the area, and the issue received a lot of press attention.”
Shooter’s proposal would have limited people to collecting and delivering 10 ballots without showing photo ID. He believed that “political machines fill their car trunks with ballots and then take them to the county recorder’s office.” He wanted to “prevent people from bringing in ‘buckets full of ballots.’”
Ironically, Fuentes would not have been in violation of the law Shooter proposed in 2011. She did not have “car trunks” or “buckets full” of completed mail-in ballots. She only had the four properly cast ballots handed to her by her neighbors in the community in which she lived and served.
Nevertheless, the Arizona Legislature abandoned S.B. 1412 because the DOJ expressed concern that it might violate the VRA. The DOJ seemed likely not to preclear (or approve) the law, a major black eye for the state. Rather than risk a formal adverse determination of discrimination, Arizona decided not to move forward. Shooter’s dream of banning ballot collection was denied.
That abruptly changed in 2013, when the Supreme Court took away DOJ’s preclearance powers because, in the estimation of the Court, “times had changed.” Unfortunately, no one had asked the Latino voters of San Luis what might happen to them if their voting rights were no longer afforded protection.
Emboldened by their new power to craft voting laws, Arizona Republicans decided to design a bill that went far beyond what even Shooter had imagined. The new bill, H.B. 2023, was enacted in 2016, just three years after the Supreme Court removed Arizona’s preclearance requirements, and made virtually all ballot collection a felony. This is the law Fuentes was convicted of violating.
Enacting a new punitive law was not easy. In the intervening years, Arizonans had increasingly come to rely on absentee voting as their preferred method of casting votes and ballot collection was a key tool aiding this voting method. The state’s permanent absentee ballot program was particularly popular for older voters in Republican areas of Maricopa County, the state’s largest county and home to Phoenix. Many of the Republicans in the state Legislature were in the mold of former Sen. John McCain (R).
To help ensure passage, Republicans once again turned to racist appeals — this time aimed at Maricopa’s Latino community. Central to this effort was a 2014 video created by Maricopa County Republican Chair A.J. LaFaro that was widely shared in Republican circles as the new ballot collection ban was being considered.
The LaFaro video depicted a Latino man delivering sealed absentee ballots to the county office drop box. With grainy surveillance footage and racist narration, the video was used to suggest that the Latino man had engaged in fraud. As the judge who reviewed the video described, “LaFaro’s commentary included statements that the man was acting to stuff the ballot box; that LaFaro did not know if the person was an illegal alien, a dreamer, or citizen, but knew that he was a thug; and that LaFaro did not follow him out to the parking lot to take down his tag number because he feared for his life.”
Americans have, unfortunately, become all too familiar with this kind of narrative: a fantasy of voter fraud spun by conspiracy and racism, and nothing else. There was no evidence that anything untoward was occurring. The video showed a man lawfully returning ballots completed by eligible Arizona voters, ensuring that their voices would be heard in the state’s elections. Nothing more, nothing less.
Unfortunately, the scheme to demonize ballot collection worked. In 2016, H.B. 2023 was enacted over the objections of Democrats and voting rights groups. It went further than even Shooter had hoped for just a few years earlier.
Immediately after H.B. 2023’s enactment, the Democratic Party and its lawyers aggressively challenged the law in court. I was one of those lawyers. After years of litigation, in January 2020, the 9th Circuit Court of Appeals sitting en banc found that the law violated Section 2 of the VRA. Pointing to the LaFaro video, the court found “racial discrimination was a motivating factor” in the law’s enactment. But the court paused its own decision until the Supreme Court could weigh in. Critically for Fuentes, that meant that the criminal ban on ballot collection could continue to be enforced even though it had been held to be racially discriminatory and a violation of the VRA.
A few months later, in August 2020, Fuentes collected and delivered four legal absentee ballots, helping ensure that members of her community would have their lawfully cast ballots counted. Gary Snyder, who was running for city council as a Republican write-in candidate, recorded a video of Fuentes’ voter assistance on his cell phone, ultimately leading to her prosecution.
Nearly a year and a half after the 9th Circuit’s ruling, on July 1, 2021, a divided Supreme Court reversed it and upheld Arizona’s criminal ban on ballot collection. Justice Samuel Alito, writing for the majority, reasoned that “[l]imiting the classes of persons who may handle early ballots to those less likely to have ulterior motives deters potential fraud and improves voter confidence.”
Contrary to Alito’s suggestion, the prosecution of Fuentes did nothing to prevent fraud or promote voter confidence. In fact, it has had the opposite effect.
Mere weeks after Fuentes’ sentencing in October 2022, the New York Times reported that many San Luis voters say they are afraid to cast ballots as a result of the case. They worry about “receiving a visit from investigators, being monitored by activists or running afoul” of the ballot collection law. According to Type Investigation’s recent exposé, the superintendent of the local elementary school district (who is also Fuentes’ daughter) worries that members of the community are “not going to want to go to vote, especially now because now they’re scared.” One resident asked the Times reporter: “Is that the purpose of this? To keep us from voting?” In San Luis, that is precisely the effect that the law is now having.
To prevent voters, especially those helping their communities, from serving future jail time, every state should make ballot collection legal.
The citizens of San Luis have good reason to be scared and good reason to believe that this was the purpose all along: to keep them from voting. Republicans have trafficked in anti-Latino racist tropes for decades. The GOP specifically targeted San Luis in 2011. The 2016 law targeted Latinos statewide.
The Republican attorney general indicted Fuentes and urged the judge to send her to jail for a year. The judge sentenced her instead to 30 days in jail and two years of probation. When a Republican white woman from Scottsdale pled guilty last year to fraudulently casting a ballot in the name of her dead mother in 2020, the same prosecutor’s office only sought 30 days of jail. That woman received no jail time, only probation.
Election deniers and vote suppressors now use Fuentes to justify their baseless fraud conspiracy and attacks on mail-in voting. It is easier for them to vilify Latinos living near the Mexico border than white Republicans from more affluent areas.
As is the case with some hard-fought legal battles, we didn’t get the outcome that Fuentes and Arizona voters deserved. In July 2021, our case ultimately failed 6-3 in the U.S. Supreme Court, but it was not for lack of effort. I am heartbroken every time I read about the real-world consequences of that case.
I say “real-world” consequences because too many legal pundits who claim to support voting rights did not support our case and indeed criticized it. These critics invariably have no personal experience with inadequate mail service and are uncomfortable with ballot collection as a solution. They also fear that ballot collection feeds Republican conspiracy theories, ignoring the costs that actual voters must pay when these baseless theories go unchecked and unchallenged.
But these laws are more than curious legal oddities to be discussed from a distance in air-conditioned offices and classrooms — real voters must navigate them and suffer their real-life consequences. Consequences that are aided and abetted when we turn our eyes away from the realities of the harms that erecting hurdles to voting in this country, under the guise of “safety” and “security,” impose particularly on minority voters.
To be clear, most voting rights organizations supported the litigation over this Arizona law. National and state voting rights groups are fighting every day for people like Fuentes even as too many legal prognosticators look away. But these organizations on the front lines of protecting the right to vote need help from state governments as well.
To prevent voters, especially those helping their communities, from serving future jail time, every state should make ballot collection legal. In March 2020, I called third-party ballot collection one of the four pillars to protecting voting rights. Every one of the 17 states controlled by Democrats should enact a law to allow it. Recently, former President Donald Trump indicated that he now supports drop boxes — a form of third-party ballot collection — after years of opposition. Perhaps this will encourage Republican controlled states to follow suit.
In the meantime, state and local prosecutors need to use their discretion to decriminalize the voting process and focus instead on prosecuting those who harass or attempt to intimidate voters and election officials. Arizona should halt further prosecutions under H.B. 2023 except where there is actual evidence of intentional wrongdoing. Other states should do the same with their laws. No one should be made a criminal simply for helping someone else vote.