WASHINGTON—Saturday the U.S. Supreme Court granted an emergency stay blocking an order from the Ninth Circuit appeals court—an order that had stopped Arizona from enforcing a law that prevents unauthorized persons from collecting early voting ballots across that state.
Arizona permits early balloting by mail for roughly a month before Election Day.
Many conservatives criticize this practice, both because it facilitates people casting a vote before the candidates have fully made their case to the voters and before being fully vetted by the public, and also because there is an increased opportunity of voter fraud and voter intimidation.
Lawmakers in the Grand Canyon State have passed laws to safeguard against these corruptions of the voting process. The most recent one is H.B. 2023, signed by Gov. Doug Ducey earlier this year. This law allows for election workers, postal workers, family members, household members, caretakers, and various other types of persons to handle, collect, and deliver a voter’s early ballot, but makes it a felony for an authorized person to do so.
Hillary Clinton’s campaign, the Democratic National Committee (DNC), the Arizona Democratic Party, and various liberal groups sued in federal court. These plaintiffs include those who organize teams to show up at voters’ homes to collect ballots.
Arizona Secretary of State Michele Reagan and Arizona Attorney General Mark Brnovich argued that without this law, unauthorized persons might pressure a voter to fill out their ballot where the collector can see the markings, and might pressure voters to vote for particular candidates, or discard ballots after collection if they believe a particular voter did not vote for the person the collector supports.
The U.S. district court ruled in favor of Arizona, and a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit affirmed in a 2-1 decision.
But then Clinton and the Democrats petitioned the full Ninth Circuit to rehear the case en banc, and on Nov. 4 an 11-judge panel of the San Francisco-based appeals court reversed the three-judge panel in a narrowly split 6-5 decision.
This en banc decision was written by Chief Judge Sidney Thomas, a liberal Democrat considered for the Supreme Court by President Barack Obama. Thomas had been part of the original three-judge panel, and was the dissenting judge among them.
In his panel dissent, he argued that H.B. 2023 violates the U.S. Constitution and also the federal Voting Rights Act of 1965. Thomas dropped all such references in the en banc opinion, writing for the liberal majority that the court was merely maintaining the status quo (meaning the state’s laws before H.B. 2023 was passed) until after the election, and then would render a final decision on the merits.
Judge Diarmuid O’Scannlain wrote the principal dissent for the five dissenting judges, beginning:
The court misinterprets (and ultimately sidesteps Purcell v. Gonzalez) to interfere with a duly established election procedure while voting is currently taking place, contrary to the Supreme Court’s command not to do so. I thus respectfully dissent from this order enjoining the State of Arizona from continuing to follow its own laws during an ongoing election. And let there be no mistake: despite the majority’s pretense to the contrary, the order granting the injunction is a ruling on the merits, and one based on an unnecessarily hasty review and an unsubstantiated statutory and constitutional analysis.
The reference to Purcell is that the Supreme Court held in 2006 that when courts are asked to interfere with state election laws only days or weeks before an election, they must regard that as an additional factor counseling restraint, weighing against inserting the judiciary into the political process.
The very next day after the en banc ruling—Saturday, Nov. 5—the Supreme Court took the unusual step of granting a weekend stay, setting aside the Ninth Circuit’s en banc order and allowing H.B. 2023 to continue in effect through Tuesday’s election. This stay will last at least until the full Ninth Circuit issues an officially final decision on the case’s merits next year.
There were no published dissents with the stay, but it takes five justices to grant a stay, so at least one of the liberal justices joined along this time.
Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.
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