In the closing hours of this year's legislative session, Republican lawmakers pushed through an overhaul of Arizona's election laws.
It wasn't an easy lift. Parts of the legislation were contained in separate bills that had stalled earlier in the session before getting folded into House Bill 2305 as adjournment approached. HB 2305 died on the Senate floor on the final night of the session as GOP supporters struggled to round up enough backing to get it across the finish line, but the legislation then came back to life via a reconsideration motion. It passed with the bare minimum 16 votes necessary when Senator Steve Pierce switched from opposing the bill to supporting it after the Prescott Republican was the target of an intense lobbying effort that included a phone call from National Republican Congressional Committee spokesman Daniel Scarpinato.
Supporters of the bill say they are just trying to make a few administrative changes to make the voting process more efficient and eliminate the potential for fraud, but critics of the legislation say it's aimed at suppressing voters—particularly the growing Latino slice of the electorate—and making it more difficult to get an initiative on the ballot.
The bill has three basic elements that are controversial:
• It makes it illegal for anyone working on behalf of a political campaign to collect early ballots from voters and turn them in to election officials. It also makes it easier for county recorders to knock voters off the Permanent Early Voter List if they don't cast an early ballot.
• It raises the bar for third-party candidates, such as Libertarians or Greens, to make the ballot.
• It makes the initiative process more difficult by calling for strict compliance with the law, as opposed to the current standard of substantial compliance. That means that minor paperwork errors would be grounds for tossing an initiative petition. It also requires initiative campaign leaders to organize their petitions in a specific way; failure to do so is grounds for rejection by the Arizona Secretary of State.
The changes are drastic enough that a coalition of different groups—including the Arizona Democratic Party, Mi Familia Vota, the Sierra Club, Planned Parenthood Arizona, and more than half a dozen union groups—have launched a referendum campaign to try to force a vote on the new law on the November 2014 ballot. The group must collect more than 86,000 valid signatures from voters before Sept. 12 in order to put the measure on hold until voters can decide whether it should stand.
"We've got a huge coalition," said Julie Erfle, who is heading up the Protect Your Right To Vote Committee. "We've got over 20 groups. Essentially, everybody is part of the coalition except Republicans. We've got Greens, we've got the Libertarians, we've got the Democrats, we've got voter-advocacy groups, we've got Latino groups, we've got environmental groups, we've got labor, we've got the Humane Society, the Animal Defense League, the League of Women Voters—these are not people who normally come together on an issue. I think that speaks volumes about what's really going on with this bill."
State Sen. Michele Reagan, who pushed for the changes in election law, charged opponents of the law with overreacting.
"I think it's been blown way out of proportion," said the Scottsdale Republican. "I almost feel like it's being used as a fund raising tactic for the Democratic Party."
Reagan said she sponsored legislation to clean up the early-voting process after a deluge of last-minute early ballots swamped election officials last year, leading to lengthy vote counts in close races. (Southern Arizona's Congressional District 2 race between Congressman Ron Barber and GOP challenger Martha McSally wasn't decided until eleven days after the election.)
Election officials complained a big part of the vote-counting delay was related to early ballots. Part of that was because the signatures on envelopes that contain early ballots have to be individually checked against signatures on file; part of it was because many voters who received early ballots lost them and ended up going to the polls to vote, so election officials had to check to make sure they had not voted twice. (And part of the delayed count had nothing to do with early voting, but was related to various other snafus that accompany elections.)
As Reagan looked into the causes of the election snafus, she said she was shocked to discover that some groups were going door-to-door and collecting ballots that they later turned in to election officials.
"I have not yet been able to find another state where it's not laughable that people can go around and collect other people's ballots," Reagan said. "It's just not allowed. And the way (HB 2305) is written, it's more lenient than California's laws, and I hardly think that California is a bastion of conservative thought where they're out to suppress the vote."
HB 2305 would make it a Class 1 misdemeanor—punishable by six months in jail and a $2,500 fine—for anyone affiliated with a campaign to turn in an early ballot on behalf of someone else.
A bit of background: The collection of early ballots by political groups is the latest evolution in the gaming of early ballots that has been going on for more than a decade.
As the Weekly has noted before, early voting has skyrocketed in Arizona. (See "Ballot Chase," April 25). In Pima County, for example, about two out of every three people voted early in 2012. That was up from just one out of four in 1996.
Voters like the convenience of voting from home. The idea that you can get your ballot 30 days before an election and look over the myriad federal, state and local offices—not to mention the various propositions, judicial retention and other choices found on a crowded presidential ballot—is clearly appealing.
But the rise in early voting has also been driven by political campaigns, which have steadily evolved to take advantage of Arizona's loose early-ballot laws. Campaigns have gone from encouraging voters to cast early ballots to going out and collecting them from voters who haven't yet sent them in.
The Arizona Democratic Party made a point of pushing early voting last year. The party's executive director, D.J. Quinlan, said that the practical effect of the new law will be fewer Democrats voting.
"Tens of thousands of ballots are collected at the door and turned in," Quinlan said. "If you now make that a criminal offense, you're essentially stopping the process."
And if someone doesn't pick up the ballots from those voters, "a good percentage are just not going to turn in their ballot," Quinlan added. "And so (the law) is essentially disenfranchising voters who would have otherwise voted. And that's taking us in exactly the wrong direction. We should be making voting easier, not harder."
The Democratic Party wasn't the only group collecting early ballots. Groups that hoped to boost Latino turnout were also going door to door. Here in Pima County, the Tucson Hispanic Chamber of Commerce partnered with Mi Familia Vota in 2012 to get more Latinos to cast early ballots, according to Lea Marquez-Peterson, president of the Tucson Hispanic Chamber of Commerce.
Marquez-Peterson said Mi Familia Vota "did an excellent job reaching out to low-propensity voters, going door to door."
"I have a concern about the election-reform bill that passed and what kind of impact that's going to have on Hispanic voters in particular," Marquez-Peterson said.
There was a similar effort in Phoenix, where Citizens for a Better Arizona collected thousands of early ballots, mostly from Latino voters in districts that had historically had low turnout, according to political organizer Randy Parraz.
But Reagan contended that having that many early ballots moving along in the hands of political operatives opens the door to tampering with votes or other mischief.
"There is no reason why people, anonymously, should have possession of 4,000 ballots," Reagan said. "That's insanity."
Quinlan argued that Reagan and her allies have yet to demonstrate that any fraudulent activity has taken place with early-ballot collection.
"They can't point to a single instance of fraud that HB 2305 would have stopped," Quinlan said.
Quinlan suggested that the real reason Republicans want to stop the early-ballot collection is that Democrats are getting good at using it to get out the vote.
"This is an area where Democrats have been way ahead of Republicans in going door to door and really prodding these voters to return their ballot and in some cases, hand-carrying them to the polling place or to the county recorder," Quinlan said.
On the weekend before an election, Democratic Party volunteers will knock on tens of thousands of doors in an effort to get more people to vote. Since it's too late for people to mail in their ballots, some of them will put them in the hands of the volunteers.
"A lot of people will trust a volunteer with the Democratic Party to do that," Quinlan said. "I can understand how some people might have a hard time understanding why you would trust somebody coming to your front door, but frankly, it's the voter's choice."
HB 2305 includes another change to the early-voting process: It makes it easier for county recorders to purge names from the Permanent Early Voter List, a register of voters who automatically get early ballots. If voters miss casting an early ballot in either a primary or a general election in the last two federal elections, county recorders can send them a form asking if they'd like to remain on the Permanent Early Voter List, or PEVL. If the form isn't sent back, the names of those voters will be removed.
Reagan said that provision was inspired by stories from voters who said they didn't realize they'd signed up for the PEVL and they wanted to vote at their precinct on Election Day. Because they'd been mailed an early ballot, they were forced to cast a provisional ballot so that election officials could confirm they had not voted twice.
The Democratic Party has put a lot of effort into educating its voters—particularly the ones who are less likely to vote in any given election—about how the PEVL works. Striking names from the PEVL will "undo a lot of the work that we've done," Quinlan said. "And frankly, this voter-education work we've done is the hard work of democracy that we should all be doing."
HB 2305 was not limited to the early-voting changes. It also contained a provision to make it harder for third-party candidates to make the ballot.
Under the current law, it's almost absurdly easy for a Green or Libertarian candidate to make the ballot. Candidates need to get one-half of 1 percent of the total number of their party's registered voters. In midtown Tucson's Legislative District 9, which has about 1,000 Libertarians, a candidate only needs about five signatures. For Greens, it's even easier; with 420 Greens, you only need three signatures. (That doesn't mean that Greens always make the ballot; a few years back, Green Party candidate Dave Croteau screwed up when he only needed seven valid signatures for a City Council run.)
The new law sets a much higher standard. Candidates from any party will need to get one-third of 1 percent of the entire number of registered voters in a congressional district, and one-sixth of 1 percent of the total voters for a legislative district.
Arizona Libertarian Party spokesman Barry Hess accused Republicans of pushing through that provision because they believe Libertarian candidates are hurting the campaigns of GOP candidates.
He points to a comment made by state Rep. J.D. Mesnard during the debate on the bill. As he was urging his fellow lawmakers to support the legislation, Mesnard said that "if you look at the last election, there were at least one and probably two congressional seats that may have gone a different direction—the direction I would have liked to have seen them go—if this requirement had been (in place). ... That will have a material impact, making this election much less vulnerable to manipulation by sham candidates from any party."
Republican candidate Jonathan Paton lost last year to Democrat Ann Kirkpatrick by about 9,100 votes in Congressional District 1, while Libertarian Kim Allen captured 15,227 votes. While Paton didn't contend that he would have won without Allen in the race, he suggested that third-party candidates are used by Democrats and Republicans as spoilers who pull votes from other candidates.
"My Libertarian opponent supported the Affordable Care Act—and his complaint with it was that it wasn't single-payer," Paton said. "I don't think that's part of the Libertarian platform."
Paton noted that the Arizona Democratic Party spent money on mailers promoting Libertarian candidates as the true conservatives in competitive congressional races in 2010.
In last year's CD1 race, Allen got on the ballot by landing sixteen write-in votes in the Libertarian primary.
"If we're going to say that all you need is sixteen signatures to get on the ballot, or sixteen write-in votes, then why even have a signature requirement?" asked Paton, who doesn't believe the new threshold is too onerous. "You only have to get a small percentage of signatures. You're going to have to sweat it out a little bit more, just like other regular candidates who are running."
But Hess said that the real spoilers are candidates who win elections: "That's who spoiled it. The other ones, the losers, just didn't get enough votes."
Hess has been working with the various members of the coalition to gather signatures to force a vote on the new law.
He argued that the new law will "make it virtually impossible to have any outside voice and if people think that something good is going to come from the middle, I've got news."
Hess dismissed the notion that opposition to the bill is a Democratic Party effort.
"Republicans are trying to paint this like it's a Democrat, partisan thing," Hess says. "No, it's not."
Finally, HB 2305 would create new hoops for supporters of initiative or recall campaigns. For starters, it requires petition passers to demonstrate strict compliance with all laws, rather than substantial compliance.
While it may sound like the splitting of legal hairs, it's actually a vital distinction that would have resulted in many past initiatives not making the ballot for minor technical errors.
That's because initiatives tend to be sloppy affairs. Signatures are collected by paid circulators or volunteers who are often not up on the details of the law.
The substantial compliance issue came up just last year, when the Quality Education and Jobs Committee pushed for a permanent one-cent sales tax. Although the group turned in more than 290,000 signatures, Arizona Secretary of State Ken Bennett rejected the petitions and Arizona Attorney General Tom Horne's legal team argued in court that one copy of the petition that was turned in to the Secretary of State's Office had a printing error that should disqualify it.
Attorneys for the Quality Education and Jobs Committee successfully argued in court that the typo was not enough to reject the petition, especially since an accurate electronic copy was turned in alongside it.
Under the strict compliance standard, the initiative would have been tossed from the ballot. (And, to specifically address cases like the Quality Education and Jobs Act, HB 2305 specifically states that the one printed copy turned into the Secretary of State's Office is the official record.)
Ann-Eve Pedersen, who chaired the effort to pass the law, viewed the push for strict compliance as a direct response to her group's court win.
"This legislature is incredibly retaliatory," said Pedersen, who added that a strict compliance standard is unreasonable, given the complexities of putting an initiative on the ballot.
"When you have no intent to mislead and you have something that's a minor error, it doesn't seem to me that the remedy is to throw something off the ballot, especially when you have what we had, which was nearly 300,000 signatures from the public," said Pedersen, who wondered where the new rules are going to end.
"You could have a secretary of state and an attorney general who create more and more hoops you have to jump through," Pedersen says. "There's nothing in the constitution that prevents them from saying, 'You have to stand on your head and cross your eyes a hundred times before you submit petition signatures.' So if you allow them to institute a strict compliance standard and they can set all the rules of how you must comply, they could make it more and more and more difficult."
In fact, HB 2305 creates new rules about how signatures must be organized before they are turned in to the Secretary of State's Office. Petitions must be organized by county, by petition circulator, and by notary public. Election officials can reject any effort that is improperly organized, which could cause a petition effort to miss a deadline.
Reagan, who pushed for the new rules on initiatives, said that it's a matter of expecting political campaigns to follow the law.
"We have laws, and we should have to follow them," Reagan said. "Why do we have laws if we don't have to follow them? You can just go into a court and say, 'Oh, well, we tried?' And because our law calls for substantial compliance, 'I tried' is OK?"
Pederson warned that the new requirements might trip up not just liberal efforts to change the law, but conservative ones as well.
"That could be a double-edged sword," Pederson said. "This could come back to bite the folks who are trying to push this through, when they have something that they want to get through, and they don't dot an "I" or cross a "T," and you have a secretary of state who decides to play politics rather than just do their job."
Gathering 86,405 valid signatures by September 12 is a tall order, but Erfle remains confident that the Protect Your Right To Vote Committee will get make the goal.
The group has received at least $200,000 in major contributions from the American Federation of State, County and Municipal Employees, the National Education Association, the United Food and Commercial Workers and the Arizona Education Association to pay for signature collections and the paid effort is being supplemented by volunteers with the various political parties and other groups opposed to the law.
Reagan says she's already formed a political action committee, Save Our Secret Vote, "to be there in case this gets on the ballot and then we need to do a campaign to keep the law."
A second group, Stop Voter Fraud, has also been formed to support the new law. It's been funded with $10,000 from the Arizona Republican Party.
As the two sides gear up for battle, Erfle said the bottom line is that the new law doesn't really address the problems that emerged in the last election.
"It creates additional problems," Erfle says. "It was really one of those middle-of-the-night, omnibus bills that was thrown together because it's going to help a small segment of our population, and they're called incumbent Republicans."