A dramatically divided federal appeals court voted Wednesday to reconsider a ruling where a panel of its judges refused to block a new Arizona law making it a felony to collect early ballots from voters.
The order from the full 9th U.S. Circuit Court of Appeals assigns an 11-judge panel to reconsider the case just six days before the election. The panel plans an expedited hearing, a court spokesman said.
A three-judge panel on Friday rejected an effort by the state and national Democratic parties and some voters to block the law. They allege it violates the Constitution and the Voting Rights Act because it hurts minorities' ability to cast ballots.
Twenty-five of the 27 active 9th Circuit judges participated in the vote to rehear the case before what's known as an "en banc" panel.
The law bars get-out-the vote groups from collecting ballots from voters and then delivering them to election offices. It's a tactic especially effective in minority communities.
Two appeals court judges wrote opposing opinions about rehearing the case, laying bare deep divisions within the 9th Circuit.
Circuit Judge Stephen Reinhardt called the issue "an urgent case of extraordinary importance involving the suppression of minority voters on the eve of a presidential election."
He said it is "indeed no secret that many states have recently enacted legislation making it more difficult for members of minority groups to vote in presidential elections," under the guise of preventing voting fraud. "And not one case of voter fraud has been cited to the district court or this court by Arizona when seeking to defend its indefensible and race-based statute."
Reinhardt appeared doubtful that the randomly chosen 11-judge en banc panel would block the law, writing that it was weighted in favor of judges who voted against reconsidering the case.
"In my own view, regardless of the decision of the en banc court, I am confident that the court as a whole would have rejected the panel majority's conclusion and enjoined the enforcement of the Arizona statute, although we will probably never know if I am correct," Reinhardt wrote "Whether I am or not, I should emphasize that whatever decision the en banc court reaches will be legitimate and will properly be binding on our court and in our Circuit."
Circuit Judge Diarmuid O'Scannlain wrote that the 9th Circuit was making a "serious mistake" by voting to rehear the case.
"Our court risks present chaos and future confusion in pursuit of an outcome the Supreme Court has explicitly told us to avoid," O'Scannlain wrote. "There are no good reasons--and many bad ones--to take this case en banc six days before the election on such a compressed schedule."
Four other 9th Circuit judges signed on to O'Scannlain comments.
The legislation, House Bill 2023, was enacted by the Republican-dominated Arizona Legislature early this year and signed by GOP Gov. Doug Ducey. He called it a common-sense effort to protect the integrity of elections and eliminate voter fraud.
Both parties have used ballot collection to boost turnout during elections by going door-to-door and asking voters if they have completed their mail-in ballots. Voters who have not are urged to do so, and the volunteers offer to take the ballots to election offices. Democrats, however, use it more effectively.
A U.S. District Court judge rejected the Democrats' effort to block the law, saying that limiting one of several ways voters can return completed ballots didn't significantly increase the burdens of voting. The three-judge appeals court panel split 2-1 in favor of upholding that ruling.
The same three judges on Wednesday rejected a request by Democrats to order that ballots cast by voters in the wrong precinct be counted. A U.S. District Court judge is considering another effort by Democrats that challenges Arizona Secretary of State Michele Reagan's decision not to extend voter registration by a day even though it fell on Columbus Day.
