The Supreme Court ruled on Monday of last week that absentee ballots in Wisconsin’s primary had to be postmarked by April 7, the date of election, but could be counted as long as they were received by April 13. Typically, absentee ballots in Wisconsin must be received on or by Election Day to count, making the decision a victory for Democrats as they seek to ease voting restrictions during the coronavirus pandemic.
Marc Elias, a Democratic elections lawyer involved in both cases, said precedent may be helpful in the legal push against Arizona’s deadline, which has emerged as the first test of whether lower courts will follow the Supreme Court’s lead. The original suit was filed in November.
“What we’ve asked the court to do is to frankly agree with what the Supreme Court did in Wisconsin, which is to say that ballots that are postmarked by Election Day will count,” Elias said Wednesday. “That’s exactly the relief we seek in Arizona.”
Challenging “Election Day receipt” laws is one priority for Democrats as they seek to roll back restrictions on voting by mail this year. Other goals include allowing third-party ballot collection, free postage and the opportunity for voters to fix a rejected ballot.
Elias, who is leading the effort, said the issue of ballot rejections because of missed deadlines tends to disproportionately affect Native American and Hispanic voters in Arizona.
“It’s an overall problem, but it’s a particular problem because of the impact it has on certain categories of voters,” he said, citing research submitted to the court this week. “We’ve seen covid and what it is doing to rates of absentee voting and also rates of rejection of absentee ballots. . . . We know this burden falls on voters generally but it falls on minority voters more heavily.”
The lawsuit in the U.S. District Court for the District of Arizona was filed on behalf of the Voto Latino Foundation, a nonprofit civic engagement group; Democratic super PAC Priorities USA; and Shelby Aguallo, an Arizona resident who stated in a February court filing that her November 2018 ballot did not count because it did not arrive until two days after Election Day.
“Given what happened in the fall of 2018, I am afraid that my vote will not count again in the upcoming election,” Aguallo wrote in a Feb. 25 declaration. “ . . . Even if I am able to send my ballot back at least a week before the election, I will not be able to incorporate any information or news that breaks in the last week of the election into my decision about the candidates I should vote for.”
Arizona Secretary of State Katie Hobbs, the defendant in the suit, did not immediately respond to a request for comment. Lawyers for Hobbs have argued that the case should be dismissed because some of the plaintiffs lack standing and because Hobbs has “no enforcement authority” to ensure ballots postmarked by Election Day are counted.