Arizona Appeals Court Rules on GOP-Led Lawsuit Against Mail-In Voting


OPINION: This article may contain commentary which reflects the author's opinion.

The Arizona Court of Appeals has ruled against a lawsuit filed by Republicans challenging mail-in balloting used during the 2020 election, with plaintiffs alleging that it violated the state’s constitution.

On Tuesday, the court ruled unanimously to affirm a lower court’s dismissal of the suit filed by the Arizona Republican Party and its chairwoman, Kelli Ward, who charged that mail-in voting is a violation of the state constitution’s “secrecy in voting” clause.

Judge Cynthia J. Bailey, who wrote the opinion, noted: “When the Arizona Constitution was adopted, the definitions of ‘secrecy’ included ‘the state or quality of being hidden; concealment,'” per a 1912 version of the New Websterian Dictionary.

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.


The Republican suit claimed that the Arizona mail-in balloting rules are a violation of the state constitution because “the text” of the document “is clear that voting rights are to be exercised ‘at the polls,'” adding 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 lawsuit also charged that “such other method as may be prescribed by law” wasn’t “a broad and general grant of authority” to extend voting to mail-in balloting but rather to “allow the legislature to authorize voting machines in lieu of paper ballots.”

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