On Tuesday, the Arizona Court of Appeals ruled unanimously to affirm a lower court’s decision to dismiss a lawsuit from the Arizona Republican Party and Chairwoman Kelli Ward challenging the state’s mail-in voting system, saying it violates the state’s constitution in regards to "secrecy in voting."
In the court’s opinion, issued by Judge Cynthia J. Bailey, she wrote that "When the Arizona Constitution was adopted, the definitions of 'secrecy' included 'the state or quality of being hidden; concealment,'" according to a 1912 version of the New Websterian Dictionary.
The same dictionary read that "'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," wrote Bailey.
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," Bailey 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.
Bailey also noted that the plaintiffs pointed to a case as supporting evidence of lack of secrecy, Burson v Freeman, but Bailey stated that this case only involves a prohibition on electioneering within 100 feet of a polling place entrance, calling the usage of the case "unpersuasive."
Additionally, Bailey noted the plaintiff’s argument that Arizona Revised Statute section 16-515, which prevents the photographing inside polling locations and taking photographs of other people’s ballots, did not read "as failing to preserve secrecy in mail-in voting."
The final argument Bailey pointed out was the plaintiff’s 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, 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," wrote Bailey.
"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.
"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," Bailey concluded.
The GOP lawsuit alleged that the state’s mail-in voting laws violate Arizona’s constitution in that "the text of the Arizona 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 article reads.
The lawsuit alleged that the phrase "such other method as may be prescribed by law" was not "a broad and general grant of authority" to grant no-excuse mail-in voting, but was rather to "allow the legislature to authorize voting machines in lieu of paper ballots."
In June of 2022, an Arizona trial court rejected the plaintiff’s request for relief and dismissed the case. The plaintiff’s appealed the case, requesting that the case be heard by the Arizona Supreme Court, but the court denied the plaintiff’s request. The appeal was filed against new Secretary of State Adrian Fontes, as well as county recorders and election officials from Arizona counties.
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