Arizona Legislative Council: Bill that Limits Automatic Mailing of Absentee Ballots Not Retroactive

People deposit their mail-in ballots for the US presidential election at a ballot collection box in Phoenix, Arizona on October 18, 2020. - Arizona is one of the eight critical swing states, along with Florida, Georgia, Michigan, Minnesota, North Carolina, Pennsylvania and Wisconsin that will determine the outcome of the …
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The general counsel for the Arizona Legislative Council sent a memo to state Sen. Kelly Townsend (R-16) on Monday in which he stated that SB 1485, a bill that removes inactive voters from the list of those who are automatically mailed absentee ballots, is not retroactive prior to its effective date.

“Senate Bill 1485 would provide that a voter on the active early voting list would continue being sent a ballot by mail until the voter fails to vote an early ballot in all elections for two consecutive election cycles,” Ken Behringer, general counsel for the Arizona Legislative Council, “a statutory committee of the legislature … [whose] staff provide a variety of nonpartisan bill drafting, research, computer and other administrative services to all of the members of both houses of the Legislature,” began in the memo, which continued:

Question: In applying the removal requirement under Senate Bill 1485,  could the county recorder or other elected official consider a voter’s failure to vote in elections held before the effective date of the bill?

Answer: Senate Bill 1485 does not contain a retroactivity clause. Courts would probably find that the consideration of a voter’s failure to vote in elections held before the effective date of the bill is a retroactive application of the change in the statute. Therefore, this practice is contrary to Arizona Revised Statutes A.R.S. Section 1-244 and therefore, would be invalid. [emphasis added]

“I was right. 2026,” Townsend told Breitbart News on Tuesday, a day after the memo was released.

In a dramatic floor confrontation last month with fellow Republican state Sen. Michelle Ugente-Rita (R-23), the bill’s sponsor, Townsend joined Democrats in voting against the bill because, she argued, it did not become effective until 2026 and other bills that would go into effect for the 2022 and 2024 election had been ignored by the GOP leadership in the state Senate.

Townsend’s “no” vote on SB 1485 temporarily killed the bill in the Arizona State Senate. Sen. Ugente-Rita also voted “no,” a procedural move that allows her to reintroduce the bill for a floor vote later in the current session. Republicans have a slight 16 to 14 majority in the Arizona State Senate.

Townsend explained her “no” vote in an exclusive interview with Breitbart News last week:

“I demand reform for the 2022 election, and will only vote ‘yes’ on the 2026 election reform bill after the 2022 election reform bills are passed,” Townsend told Breitbart News on Tuesday.

Townsend told Breitbart News that Senate Bill 1485, which she voted “no” on last week, is really a 2026 election reform bill, not a 2022 election reform bill, “because it will take four years from passage before voters who miss elections will be purged from the voter list to automatically receive absentee ballots.”

“I am not killing the bill [Senate Bill 1485]. I will vote ‘yes’ on the bill upon reconsideration when it is brought back, only after election reform for 2022 is passed,” Townsend added.

As Breitbart News reported, Heritage Action released a statement last week, prior to the release of the memo from the Arizona Legislative Council, which asserted Senate Bill 1485 is retroactive:

Heritage Action said on Wednesday an Arizona election integrity bill that will “clean up the state’s early voting list and remove registrations that have been inactive in two consecutive election cycles,” will go into effect immediately, and not in 2026, as State Sen. Kelly Townsend (R-16) said in an exclusive interview with Breitbart News on Tuesday.

On Thursday, Sen. Townsend told Breitbart News she has asked legislative legal counsel to provide an opinion as to whether the Heritage Action interpretation of the bill’s date of effectiveness or her interpretation was correct. . .

Hans von Spakovsky, a senior legal fellow at The Heritage Foundation, and a nationally recognized expert on election law, said in the statement:

The text of Arizona Senate Bill 1485 is clear: it requires county recorders to remove voters from the early voting list who have failed to vote early in two consecutive election cycles. SB 1485 will go into effect immediately after passage, not in 2026 as some have claimed.

County recorders can, and should, lawfully begin cleaning up the early voting list well before the 2022 midterm election, based on voter participation in the 2018 and 2020 election cycles. While the bill specifies January 15, 2023, as the first deadline for removal, that is the last possible date for county recorders to begin the process, not the first chance. [emphasis added]

“We stand by our previous analysis of the bill. The legislative counsel has suggested how they think courts will ‘probably’ rule on a potential challenge to the bill’s implementation, and we respectfully disagree,” Garrett Bess, vice president of Government Relations and Communications at Heritage Action told Breitbart News on Tuesday.

“The Arizona Senate should swiftly pass SB1485, and senators should continue passing legislation to secure and strengthen Arizona’s voting system,” Bess added.

State Sen. Townsend met with Senate President Karen Fann last week in an effort to resolve the intra-party stalemate over SB 1485 and other election integrity bills.

Townsend told Breitbart News that the meeting went well, but it is unclear when Republican Arizona state legislators will be able to resolve their internal disagreements over election integrity tactics.

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