From Arizona Republican v. Fontesdecided today by the Arizona Court of Appeals (opinion of Judge Cynthia J. Bailey, opinion of Presiding Judge Samuel A. Thumma and Associate Chief Judge David B. Gass):
The Arizona Republican Party (“AZGOP”) and its chairwoman Kelly Ward … filed a lawsuit against the Arizona Secretary of State … and election officials in each of the fifteen Arizona counties … alleging that Arizona mailed The voting law violates Article 7, Section 1 of the Arizona Constitution (“Secrecy Clause”). The secrecy clause states, “All elections by the people shall be taken by ballot, or otherwise prescribed by law; provided that the vote is kept secret.” …
[Plaintiffs] admit[e] Voting in person before Election Day may be constitutional, argues mail-in voting violates secrecy clause if only Because it occurs without the following requirements: “(1) Officials present when absentee voters cast ballots… (2) Officials subsequently watch[es] Voters seal their ballots in envelopes. “…
Although the plaintiffs submitted evidence to the high court of their alleged breach of mail-in voting secrecy protections, in their appeal brief and oral argument in this court, they conceded that their challenge was merely a facial one.In order to be successful in their face challenges, the plaintiffs “must establish that no circumstances [statutes] will be valid. “…
Plaintiffs argue that Arizona’s mail-in ballot law violates the secrecy clause because the law does not require officials to establish a no-go zone around voters filling out mail-in ballots. …
When the Arizona Constitution was adopted, the definition of “secrecy” included “the state or nature of being concealed; concealing[.]” keep secret, New Webster’s Dictionary, 735 (1912). The definition of “protect” includes “to avoid injury; to defend; to persist; to preserve; to maintain a state of health[.]” save, New Websterian Dictionary, 646. So the implication of the secrecy clause is clear: when mandating voting by ballot or any other means, the legislature must support voters’ ability to conceal their choice. The Constitution does not prescribe any particular method of voting secrecy.
Arizona’s mail-in ballot law protects voting secrecy by requiring voters to ensure they fill out their ballots privately and seal them in envelopes that won’t reveal the voter’s choice. Section 16-548(A) states:
Early voters should prepare and sign an affidavit and His vote should then be marked in such a way that his vote cannot be seen. Early voters should fold their ballots and, in the case of paper ballots, In order to conceal voting and to deposit voted ballot papers in the envelope provided for this purpose which shall be securely sealed and, together with the affidavit, delivered or mailed to the county recorder or other official in charge of the election or voter’s proxy for the political subdivision where the voter is registered or deposited at any polling place within the county.
Election officials responsible for preparing mail-in ballots must “[e]Ensure ballot return envelope type Not revealing voter’s choice or political affiliation and tamper proof When properly sealed. “And, when opening an envelope containing a mail-in ballot, an election official must “remove the ballot without opening or permitting it to be opened or inspected…” This is a second-degree misdemeanor for an election official to”[o]Pen[ ] maybe[ ] A voter’s folded ballot…opened or inspected before placing it in the ballot box. “
These regulations ensure that mail-in voters’ choice is hidden by requiring voters to mark their ballots to ensure their ballots are not seen, and then securely seal them in envelopes that will not reveal their ballots. Once a voter does this, election officials cannot open the ballot to reveal the voter’s choice. It must be dropped into the ballot box for the votes to be counted. At no point can a voter’s identification information on their ballot envelope be legally linked to their vote. These protections are sufficient to ensure voting secrecy. The Legislature is free to adopt the stricter requirements urged by the plaintiffs, but the Constitution does not require it. …
Plaintiffs argued that while Arizona law secrecy votes at polling places, Section 16-1018 failed to secrecy votes by mail. The plaintiffs contend that Arizona law does not keep ballots secret because mail-in voters may have their ballots photographed and posted on the Internet. Plaintiffs point to § 16-515(G), which states, “Notwithstanding § 16-1018, no person shall photograph or videotape within the seventy-five-foot limit surrounding a polling place.” Section 16-1018 refers to a person “[s]how[ ] A ballot provided by another voter in public to anyone other than an authorized person lawfully assisting that voter after preparing to vote”, but “[a] By posting an image of their own ballot on the Internet or other electronic media, voters are deemed to have consented to the retransmission of that image, and retransmission does not constitute a violation of this section. “
We do not interpret § 16-1018(A)(4) to mean a failure to maintain confidentiality in ballots by mail. Section 16-1018(A)(4) provides a defense only to the offense of presenting another person’s ballot to anyone when it is ready. The defense applies when a person presents another voter’s ballot if the voter who filled out that ballot posted the picture online.The Legislature’s decision not to prohibit a mail-in voter from showing others her own marked ballot, whether in person or online, does not violate the terms of confidentiality because the Legislature has ordered a mail-in voter to “mark [her] vote this way [her] Can’t see votes. “…
