A GOP-led attempt to challenge the use of mail-in ballots during the 2016 election was rejected by the Arizona Court of Appeals on the grounds that it was illegal. Justices observed that regardless of party affiliation, voters should be guaranteed reasonable and convenient access to their voting rights in rejecting the lawsuit.
In an effort to stop mail-in voting, the Arizona Republican Party and its chairwoman, Kelli Ward, filed a lawsuit; however, the court unanimously ruled that doing so did not violate the state’s constitution. Despite opposition from the GOP party leadership on this issue, it appears that mailing ballots will continue to be used in elections.
In her judgment, Judge Cynthia J. Bailey highlighted the significance of a century-old definition, noting that at the time Arizona became a state, “secrecy” was believed to mean anything to be kept secret and hidden from the general public.
The same definition noted further: “‘Preserve’ definitions included ‘to keep from injury; defend; uphold; save; keep in a sound state.’”
“Thus, the Secrecy Clause’s meaning is clear: when providing for voting by ballot or any other method, the legislature must uphold voters’ ability to conceal their choices. The constitution does not mandate any particular method for preserving secrecy in voting,” Bailey’s opinion continued.
The Post Millennial noted further:
Bailey continued on to say that the state’s main-in voting laws “preserve secrecy in voting by requiring voters to ensure they fill out their ballot in secret and seal the ballot in an envelope that does not disclose the voters’ choices.”
She noted that the election officer who prepares mail-in ballots must make sure that return envelopes are of a type that does not reveal voting selections and has a tamper-evident seal. Bailey added that under Arizona Revised Statutes, it is a class two misdemeanor for any election official to open or allow to be opened the ballot of the voter before it is placed in the ballot box.
“These statutes ensure that mail-in voters’ choices are concealed by requiring voters to mark their ballot so their vote cannot be seen and then to securely seal it in an envelope that does not disclose their vote,” the appeals judge wrote.
“After a voter does this, election officials cannot open the ballot to reveal the voter’s selection. It must be deposited in the ballot box to be counted. At no point can the voter’s identifying information on their ballot envelope be lawfully connected with their vote,” she added.
The judge also pointed out the plaintiffs’ argument that the lower court “erred in relying on Miller v. Picacho Elementary Sch. Dist. No. 33 to conclude that Arizona’s mail-in voting statutes preserve secrecy in voting.”
“In Miller,” she countered, “our supreme court observed that a law that required election officers to mail the absentee ballot to the requesting voter and prohibited anyone other than that voter from possessing the ballot advanced the constitutional goal of secrecy in voting.
“The superior court here properly noted our supreme court in Miller observed that mail-in voting laws further the goal of secrecy. But the superior court did not rely solely on Miller to find that mail-in voting laws constitutionally preserve secrecy in voting. We find no error in the superior court’s analysis,” said Bailey
“Arizona’s mail-in voting statutes ensure that voters fill out their ballot in a manner that does not disclose their vote and that voters’ choices are not later revealed. The superior court did not err in finding that these protections are sufficient to preserve secrecy in voting,” she concluded.
In their lawsuit, the Republicans argued that Arizona’s mail-in voting laws are unconstitutional because “the text” of the state constitution “is clear that voting rights are to be exercised ‘at the polls’,” and that “Article 7, section 1 of Arizona’s constitution requires secrecy in voting and does not allow for mail-in voting.”
“All elections by the people shall be by ballot, or by such other method as may be prescribed by law; Provided, that secrecy in voting shall be preserved,” the state constitution says.
The complaint argued that the legal definition of “alternative methods of voting” was too narrow to cover mail-in votes and only permitted the use of new technology, such as voting machines.
