Mail-In Voting Doesn’t Violate Arizona Constitution’s “Secrecy in Voting” Requirement
From Arizona Republican Party v. Fontes, decided today by the Arizona Court of Appeals (opinion by Judge Cynthia J. Bailey, joined by Presiding Judge Samuel A. Thumma and Vice Chief Judge David B. Gass):
The Arizona Republican Party (“AZGOP”) and its chairwoman Kelli Ward … filed this case against the Arizona Secretary of State … and election officials in each of Arizona’s fifteen counties …, alleging Arizona’s mail-in voting laws violate Article 7, Section 1 of the Arizona Constitution (“the Secrecy Clause”). The Secrecy Clause states, “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.” …
[Plaintiffs] conced[e] that voting in person before election day may be constitutional, and argued instead that mail-in voting violates the Secrecy Clause only because it takes place without the requirements that “(1) an official be present when absentee voters cast their ballots … and (2) that the official then watch[es] the voter enclose and seal the ballot in an envelope.” …
Though Plaintiffs presented evidence to the superior court of alleged mail-in voting secrecy protection violations, in their briefing on appeal and at oral argument before this court, they concede their challenge is only a facial challenge. To succeed on their facial challenge, Plaintiffs “must establish that no set of circumstances exists under which the [statutes] would be valid.” …
Plaintiffs argue Arizona’s mail-in voting laws violate the Secrecy Clause because the laws do not require officials to secure a restricted zone around a voter who fills in a mail-in ballot….
When the Arizona Constitution was a
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