Hobbs asks 9th Circuit for end to new voter registrations, but with a grace period




vote here sign
Arizona voters make their way to a polling place to cast their ballot during the midterm elections on Nov. 6, 2018. Photo by Ralph Freso | Getty Images

Secretary of State Katie Hobbs reversed course and asked the U.S. 9th Circuit Court of Appeals to scrap the extended voter registration deadline that a federal judge ordered last week.

The shift by Hobbs puts her largely on the same page as Attorney General Mark Brnovich, though there was one notable difference in their positions. The Secretary of State’s Office told the court that it’s open to a “grace period” that would give people a few more days to register to vote if the judges reject the new deadline, while the Attorney General’s Office opposed such a move.

Both offices agreed that it would be unfair to bar people who have registered under the new, court-ordered deadline from voting in the Nov. 3 election, regardless of whether the 9th Circuit cuts off new registrations. An attorney for the Republican National Committee and National Republican Senatorial Committee also said his clients wouldn’t challenge the eligibility of people who registered to vote under the new deadline.

According to the Secretary of State’s office, more than 28,000 people registered over four days last week after the Oct. 5 deadline.

Hobbs initially opposed a request to extend the deadline by two advocacy groups, Mi Familia Vota and the Arizona Coalition for Change, who filed suit in U.S. District Court on Sept. 30, arguing that the statutory registration deadline unconstitutionally restricted voter registration efforts that had been hindered by the COVID-19 pandemic. 

After Judge Steven Logan ordered the deadline extended to Oct. 23, Hobbs said she wouldn’t appeal in order to provide clarity to the situation and avoid another confusing change in the deadline. The RNC, NRSC and Brnovich later intervened in the case and urged the 9th Circuit to overturn Logan’s decision.

On Sunday, Hobbs joined them in asking the 9th Circuit to nix the new deadline. The secretary’s attorney argued that extending the deadline to Oct. 23 overburdens election administrators who must also deal with early voting, mail-in ballots and the verification of voter rolls, all while processing new registrations. Some of the smaller counties only have two or three employees that are responsible for those duties, attorney Roopali Desai told the 9th Circuit.

Desai reiterated those arguments on Monday during a hearing before a three-judge panel.

“In our view, extending the registration deadline is far more problematic and causes irreparable harm,” Desai told the judges. “The real problem here is the harm to the overall orderly administration of elections.”

Halting new voter registrations while permitting a grace period would relieve county election officials of some of the burdens they face from Logan’s order while allowing potential voters who hadn’t registered yet but were relying on the new court-ordered deadline a little extra time, Desai wrote. She suggested Friday as a possible cut-off date.

Deputy Solicitor General Drew Ensign, who represented Brnovich’s office at the 9th Circuit, argued instead that new registrations should be halted immediately. Any registration that election officials have already received should be permitted to stand, he told the judges, but they shouldn’t accept any new registrations, including those that are currently in the mail.

“The level of chaos is simply not worth the benefit that would be had,” Ensign said.

The RNC and NRSC took a similar position. 

“It shouldn’t be extended for one minute longer,” said attorney Kory Langhofer, who represents the GOP groups.

Attorney Matthew Brinckerhoff, who represents Mi Familia Vota and Arizona Coalition for Changed, rejected the idea that the new deadline should be reversed at all, and urged the judges to allow voter registration to continue through Oct. 23. 

If the 9th Circuit does stay Logan’s order extending the deadline, Brinckerhoff said it would only be fair to allow the grace period that the secretary of state proposed. The new deadline has been public knowledge for a week, he said, noting that 15,000 people registered to vote on Oct. 6 alone.

“If that were to happen,” Brinckerhoff said, referring to a possible stay that would block new registrations for the Nov. 3 election, “I think it would be a good exercise of the court’s equitable powers here to make sure that it’s done in the least disruptive way possible, which would be to grant a number of days for people to learn of the change and to act accordingly, so that people are not denied their right to vote in this upcoming election.”

The judges suggested that the parties could speak with a court-appointed mediator immediately after the hearing to discuss a possible resolution, though Ensign said he hadn’t discussed the issue with the Attorney General’s Office and wasn’t authorized to agree.

Brinckerhoff also defended his clients’ decision to wait until just days before the registration deadline to file suit asking that it be extended, which Judge Marsha Berzon called “inexplicable.” Echoing comments Desai made earlier in the hearing, the judge questioned why the advocacy groups didn’t file suit in August or September, when a change in the deadline would’ve been less disruptive.

“You really put pressure on the situation by not coming in until Sept. 30,” Berzon said.

Brinckerhoff responded that his clients wouldn’t have been able to show the negative effects that the coronavirus outbreak had on their voter registration efforts if they’d filed suit earlier. The lawsuit included statistics showing the drop-off in registrations compared to previous election years.

“There would have been very little relief that the court could have granted,” he said. 

Jeremy Duda
Associate Editor Jeremy Duda is a Phoenix native and began his career in journalism in 2003 after graduating from the University of Arizona. Prior to joining the Arizona Mirror, he worked at the Arizona Capitol Times, where he spent eight years covering the Governor's Office and two years as editor of the Yellow Sheet Report. Before that, he wrote for the Hobbs News-Sun of Hobbs, NM, and the Daily Herald of Provo, Utah. Jeremy is also the author of the history book “If This Be Treason: the American Rogues and Rebels Who Walked the Line Between Dissent and Betrayal.”