9th Circuit pauses extension of Arizona ballot cure deadline
2020 VRELDBRF 0054
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By Josh Numainville
WESTLAW TODAY Voting Rights & Elections Briefing
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October 8, 2020
(October 8, 2020) - An appellate panel has reinstated Arizona's Election Day deadline for voters to cure unsigned absentee ballots while the court hears appeals by the Trump campaign, Republican National Committee and Arizona Secretary of State Katie Hobbs.
The order issued Oct. 6 by the 9th U.S. Circuit Court of Appeals says the state's Election Day deadline imposes a minimal burden on voting rights and that a stay is consistent with the U.S. Supreme Court's directive that federal judges avoid changing voting procedures on the eve of elections.
Cure deadline extended
In June, the Democratic National Committee and Arizona Democratic Party sued Hobbs over Arizona's deadline allowing voters only until Election Day to fix absentee ballots missing their signatures, saying the requirement violated the 14th Amendment by burdening the right to vote.
Donald J. Trump for President Inc. and the Republican National Committee, represented by Thomas McCarthy of Consovoy McCarthy PLLC, intervened on behalf of Hobbs later that month.
U.S. District Judge Douglas L. Rayes of the District of Arizona issued an order Sept. 10 extending the deadline by five business days, saying the minimal burdens on voting rights imposed by the Election Day cutoff were not justified by the state's asserted interests under the Anderson-Burdick framework.
Anderson-Burdick requires courts to weigh the character and magnitude of an alleged injury to voting rights against the interests asserted by the state to justify the burden. The extent of the burden determines the standard used to analyze the challenged government action, according to Judge Rayes.
The Trump campaign, RNC and Hobbs filed two emergency motions for a stay, arguing that the District Court misapplied Anderson-Burdick and impermissibly altered Arizona's rules mere months before the Nov. 3 election.
9th Circuit reinstates deadline
The 9th Circuit panel granted the requests for a stay, saying that the appellants were likely to succeed on the merits of their claims because the Election Day deadline imposes a minimal burden on voting rights outweighed by Arizona's interest in administering orderly elections.
The panel rejected the Democrats' argument that A.R.S. § 16-550, which allows voters to cure ballots returned with mismatched signatures, undermined the state's asserted interests.
Unlike ballots rejected by election officials for perceived signature mismatches, voters directly control whether their ballot contains a signature as required by A.R.S. § 16-547, according to the panel.
Additionally, the judges said the public interest favored issuing a stay to avoid the type of last-minute changes to voting rules that the Supreme Court cautioned against in Purcell v. Gonzalez, 549 U.S. 1 (2006).
Marc E. Elias of Perkins Coie LLP represents the Democratic National Committee and Arizona Democratic Party.
The Trump campaign is asking the 9th U.S. Circuit Court of Appeals to stay an injunction requiring Arizona election officials to provide voters up to five business days to correct ballot envelopes received without signatures.
Arizona election officials must allow absentee voters up to five business days after an election to correct ballot envelopes received without signatures, an Arizona federal judge has ruled.
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