As Arizona Republicans revive lawsuit to stop early voting, Brnovich won't defend the state
The Republican Party has restarted its lawsuit to end early voting in Arizona, but the state won't have a key official defending the practice: Arizona Attorney General Mark Brnovich has dropped out of the case.
The decision not to defend the early voting system came from a mutual agreement between the Republican Party of Arizona, which filed the complaint, and the Attorney General's Office, court records show. It is not clear who initiated the move to leave the lawsuit.
"I'll let the AG's office comment on that," said attorney Alexander Kolodin, who is representing the state party.
Brnovich's office did not reply to a query about why he agreed to the move.
But in a filing to the Mohave County Superior Court, state Solicitor General Brunn W. Roysden III stated the Attorney General's Office agrees to be bound by the outcome of the lawsuit, including any appeals.
The state GOP moved their lawsuit challenging the constitutionality of early voting to Mohave County after the state Supreme Court last month declined to take up the matter, saying it needed to start in a lower court. A hearing is scheduled for June 3.
Early voting's popularity has grown in the 30 years since it started in Arizona. Under the system, voters can get a ballot in the mail and return it by mail or drop it off at a polling place, an early-voting center or a ballot drop box. In 2020, nearly 90% of the ballots cast in Arizona were via early ballot.
In his March response to the filing with the state Supreme Court, Brnovich's office noted that the suit "raises important questions about the constitutionality of Arizona's early-voting system," but objected to the filing on procedural grounds.
The dismissal leaves 16 other defendants to argue the case: the 15 county recorders and the office of Secretary of State Katie Hobbs. Kolodin said at least one county recorder has indicated a hands-off approach to the defense, but has not sought to be dismissal from the litigation.
Hobbs, in a statement, called the attorney general's exit predictable but upsetting.
"No one who has been paying attention for the past year could possibly be surprised that AG Brnovich is refusing to defend Arizona's early voting system," she wrote. "But his dereliction of duty is shocking nonetheless."
Why GOP is targeting early voting
The lawsuit argues Arizona's early voting system, established in 1991, violates constitutional requirements that elections officials must distribute at a polling place and that voters must cast their ballots in secret.
That can't happen with a ballot that arrives via a postal carrier and that is voted on at a kitchen table, the suit argues.
Secretary of State Katie Hobbs' office has argued that the state Constitution doesn't require in-person voting, as the state Republican Party claims. While the Constitution stipulates that voting secrecy must be protected, it leaves methods of voting to the Legislature.
The Republican Party is asking the court to find early voting, established by a bipartisan vote in the Arizona Legislature in 1991, unconstitutional. It also seeks a preliminary injunction barring early voting for this year's Nov. 8 general election. That would mean voting would have to happen at the polls on Election Day, with some exceptions for absentee voting.
Mail-in voting became a target of some Republicans after President Trump lost his re-election bid in the 2020 election. Trump complained that it was insecure (although he voted by mail) and state legislatures have responded with numerous proposals to hem in or outright ban the practice. Many adopted mail-in voting in 2020 in response to the COVID-19 pandemic and amid concerns that crowded polling places might deter voters from showing up at the polls.
Unlike the complaint the Arizona GOP took to the Supreme Court, the party's lawsuit in Mohave County would allow absentee voting to continue for voters who are incapable of getting to the polls, those who would be out of their precinct on Election Day or other excused absences. Kolodin said that would return Arizona to the system in use before the adoption of no-excuse mail-in voting.
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