The Supreme Court last week ruled in favor of clean elections by upholding two Arizona voting laws designed to prevent fraud, the state's attorney general says.
In a 6-3 decision, the high court upheld Arizona laws banning ballot harvesting and out-of-precinct voting.
“[W]e need to recognize that the Constitution allows states to enact election integrity measures,” Arizona Attorney General Mark Brnovich says. “The framers of our Constitution understood that.”
After the Supreme Court issued the ruling, President Joe Biden said he was “deeply disappointed” and promised to continue promoting Democrat-backed election legislation. But Brnovich says that his state's laws are designed to protect all votes and won’t negatively affect minority communities.
“I think it's clear,” Brnovich says, “ … that the left, the hard left, the DNC [Democratic National Committee], and other left-wing groups are trying to do everything they can to control the state election process because they think that will benefit them.”
Brnovich joins “The Daily Signal Podcast” to explain why this Supreme Court ruling is a victory for election integrity not only in Arizona but across the country.
We also cover these stories:
- Nikole Hannah-Jones, author of The New York Times' much-disputed 1619 Project, declines a tenured position at the University of North Carolina.
- A D.C. man appeals to the Supreme Court to block a federal mask mandate for travelers from the Centers for Disease Control and Prevention, contending it is unconstitutional.
- Ibram X. Kendi, author of the book “How to Be an Antiracist,” is scheduled to speak Wednesday at the national convention of the American Federation of Teachers.
Listen to the podcast below or read the lightly edited transcript.
Virginia Allen: I am so pleased to welcome to the show Arizona Attorney General Mark Brnovich. Attorney General, thank you so much for being here.
Arizona Attorney General Mark Brnovich: Well, thank you very much, Virginia, for having me.
Allen: Last week, the Supreme Court ruled 6 to 3 to uphold Arizona's election integrity laws. This specific conflict over Arizona's election laws centered on the state's regulation both of ballot harvesting and on limitations of out-of-precinct voting. So back in 2016, the Democratic National Committee, they challenged these laws. Explain why the DNC sued the state over these election laws.
Brnovich: Well, Virginia, I'm always reluctant to try to put words in other people's mouths, but I will just say this, is that not only in Arizona, but other jurisdictions, you have a lot of left-wing groups and you have the Democratic National Committee targeting swing states, red states, so to speak, challenging their election integrity measures.
And so in Arizona, there were limits on how ballots can be harvested—I mean, how they can be collected by non-family members. And there's also requirements and statutes dealing with how to handle out-of-precinct voting and limiting the ability of people to vote out of precinct. So the DNC challenged those laws.
We actually won after a 10-day trial at the federal district court. And then of course, the appeal to the 9th Circuit. And the 9th Circuit struck those laws down and we were able to get a stay and then ultimately appeal it to the U.S. Supreme Court, where I personally argued the case. And as you said, we won 6 to 3.
Allen: Yeah. Well, ballot harvesting, for those that don't know, it's the practice of a third party that's collecting ballots and delivering them to a polling place. So why did Arizona decide that this practice was a threat to the state's election integrity and it was something that you wanted to do away with?
Brnovich: Well, first and foremost, we know that no less than The New York Times in 2012 was writing about the dangers and concerns related to mail-in balloting and how that could lead to disenfranchisement.
And as we pointed out in our briefs and it came up during oral argument that when [former President] Jimmy Carter, a liberal Democrat, and former Secretary of State James Baker conducted a bipartisan election commission, they issued a report in 2005, and Jimmy Carter noted that one of the greatest threats to election integrity was this practice of ballot harvesting or mail-in ballots where third parties can handle and collect your ballots.
So states like Arizona adopted commonsense election integrity measures that were consistent with that Baker-Carter report. And of those was the fact that we did not want third parties, that is, political candidates or political parties, handling ballots.
And as Justice [Samuel] Alito pointed out in his majority opinion, I mean, there's a whole myriad of reasons for that, but frankly, you have to look no less than the 2018 congressional election in North Carolina, where a seat remained vacant for nearly a year because one of the candidates engaged in ballot harvesting and selectively manipulated ballots that were against him and for him.
So this is something that's not theoretical. It's happened. And we know that it's happened in other jurisdictions. So the state of Arizona, like other states, adopted measures to try to limit the impact that ballot harvesting could have on voters.
Allen: That's interesting. Interesting to hear that history that this has not always been a partisan issue, that there used to be a consensus around the fact that ballot harvesting, on both sides of the aisle, we're saying this isn't something that we want.
Brnovich: Yeah. And we know even here in Phoenix, the evidence came out during the 10-day trial that a former city councilman who was African American testified in favor of the law. He had expressed concerns about ballot harvesters misrepresenting themselves as election workers or government workers.
In fact, in 2015, the city of Phoenix actually had to issue a warning because people were going around claiming to be election officials.
So this is something that was historically a nonpartisan issue. As I said, that no less than The New York Times … identified this concern in 2012. And Jimmy Carter, the great liberal icon, had also expressed concerns and called it one of the greatest threats to election integrity.
So this shouldn't be a partisan issue. It shouldn't even be a philosophical issue. It's, quite frankly, about preserving not only the integrity of elections, but people's confidence in the results.
Allen: And what about out-of-precinct voting? Why should an individual not be allowed to vote in a precinct other than their own?
Brnovich: Well, Virginia, one of the things that I just would note right at the beginning that's so important is the Constitution provides that states can set time, place, and manner. They can set how the time, place, and manner of their state elections are conducted.
As I've said before, what works in Manhattan, New York, may not be the same that will work in Manhattan, Kansas. And Virginia Beach is a lot different than Solana Beach in California. So we need to recognize that the Constitution allows states to enact election integrity measures. The framers of our Constitution understood that.
And out-of-precinct voting, basically, there are limitations on that that have existed for years, for decades. In fact, as we pointed out in our briefs, a majority of states and even the District of Columbia have limitations on out-of-precinct voting. Those regulations came about because some counties, some states wanted to ensure order in their elections.
So it requires that people vote or cast their ballots in their assigned precinct. That way you can confirm easily if that voter is indeed a voter in that precinct. You can also minimize the costs with having ballots rejected or not rejected.
And the reality is is that … if people are voting outside of their precinct, that means they may be impacting local races, whether it's the city council or even state legislative races. And so you would be disenfranchising folks depending on what precinct they were or weren't voting in. And ultimately, you want to make sure that there's order and not chaos, and you don't have all these costs associated with out-of-precinct voting.
But as we pointed out in our briefs, and this is really important, Virginia, in Arizona, we have early voting … in person up to 27 days, nearly a month, before the election. There are ballot drop-off locations. Some places allow for drive-up ballot drop-off. So there's a whole myriad of ways, including mail-in ballots, where people can exercise their franchise.
So this is one of those classic red herring examples that the left tries to use … the courts to make election law or change election law in certain states. And the reality is the Supreme court rejected that argument. And as I said, this is not some sort of crazy outlier standard. A majority of states have some sort of similar statutes.
Allen: Yes. Well, like you said, the Supreme Court did reject that argument that the Arizona laws somehow suppress votes and they ruled 6 to 3 that they're going to uphold Arizona's election laws. So why is this Supreme Court ruling significant for other states that have or are seeking to enact election reform legislation in order to safeguard elections from fraud?
Brnovich: Well, I literally said at the beginning of my oral argument that there is no more sacred duty for public servants than protecting the right to vote. But we have to maintain confidence in the integrity of the results.
So this case is so important and some have argued that it's the most important case this term because it really sends a clear message that states do have the ability to control their local or their state elections. And we don't want to nationalize our elections for lots of reasons. And that's why S 1 and HB 1 are really, really troubling on a lot of levels.
I do think that it does mean that if the Department of Justice tries to go after a state, saying that there's a Section 2 violation of the Voting Rights Act, I think the courts will be, and they should be, very dubious of any of those claims.
So I think this really is important because it allows states to enact commonsense election integrity measures, and really to make sure that not only are the results accurate and there's integrity in the process, but we want people to have confidence in the process as well.
Allen: Yeah, that's so critical. Many on the left were not pleased with this ruling. After the ruling, President Joe Biden said he was “deeply disappointed” in the “decision by the United States Supreme Court that undercuts the Voting Rights Act and upholds what Justice [Elena] Kagan called ‘a significant race-based disparity in voting opportunities.'” What is your response to the president's words here?
Brnovich: I think the president is either confused or being hypocritical because the Biden administration's own Justice Department, when asked to weigh in by the court, essentially agreed that these statutes are consistent with the Voting Rights Act.
And second, and I hope all listeners to this podcast hear this and recognize this, is that I think what the Biden administration said and what the far left has said exposes the glaring hypocrisy of Democratic Party leadership.
I mean, we know that in case after case, they try to argue—especially in battleground states like Arizona and Georgia—that somehow these statutes disenfranchise voters. And that's simply not the case.
I mean, obviously the Supreme Court said they're constitutional, but I just want to point out, as a matter of policy, look at what's going on in states the Democrats politically control. If they actually believed these types of statutes are disenfranchising voters, then why aren't they doing anything in their own states?
We know that in places like Connecticut, Delaware, Maine, New York, New Jersey, Virginia, they don't permit any sort of curing for ballots. We know that in states like Colorado, Delaware, Hawaii, Maine, New Mexico, the list goes on and on, Oregon, that there's requirements dealing with when ballots have to be postmarked by.
And we know that in states like New Jersey, where they recently enacted legislation that allows nine days of early voting or in-person voting, that that's still a third of what Arizona offers and it's nearly half of what states like Georgia offer.
We know that in a lot of jurisdictions like Delaware, Connecticut, New York, you have to have some bureaucrat approve whether you want to get an absentee ballot. That's not the case in Arizona or Georgia.
So I think what we have seen is the hypocrisy on the left on full display, because there is a whole plethora of Democratic-controlled states, especially the Northeast, where there is actually less opportunity and less access to the ballot box.
And so, facts are peculiar things. And the left's hypocrisy, I think, is being exposed. I think sometimes the issue for people that believe in the Constitution, believe in the rule of law, is that they don't push back hard enough on this narrative.
And the reality is that not only is the Constitution on our side, but the facts are on our side, and we need to make sure we're pushing back against these false narratives of the left because they are trying to coach this or make this—even Justice Kagan's dissent—somehow an either/or proposition, that you either have to be for more access or more voting, or you want voter integrity.
And the reality is it is not an either/or choice. We can have more voting, we can have more access to the ballot, we can have record turnout, but we can also have integrity and confidence in the results.
Allen: And why is it then that the left is attacking states like Georgia and Arizona for their election laws, if states, like you say, like New Jersey, Maine, New York, have somewhat similar voting laws or laws that could be seen as somehow restricting elections? What is really the purpose or the agenda that the left has here?
Brnovich: I think it's clear, … especially when it comes to voting, is that the left, the hard left, the DNC, and other left-wing groups are trying to do everything they can to control the state election process because they think that will benefit them.
I also think that we've seen nothing happens in a vacuum. And I think you have to look at this from a macro perspective, when you see bills like S 1, HR 1 that are designed to nationalize elections, give the federal government control of elections, I think that's all about control.
The far left wants to control not only our property rights and our economy through high taxes and high regulation, they also want to control our elections through federal statutes. And once you can control people's livelihoods, once you can control their economic future, and once you can control elections, you can control the way people vote. So I think that this is all part of the Democratic plan.
And once again, I would just ask my friends on the left that if ballot harvesting is such a terrible thing, then why didn't you sue New Mexico or Nevada, even Virginia, where there's very similar laws? And I think that's the answer, because they control the processes in those states so they seem to not care about what goes on there.
But they care about these swing states like Georgia and Arizona because they think they can … game the results, control the results. And ultimately, by making all sorts of outrageous allegations, they can browbeat or intimidate companies, and I'll call it the “Chamber of Commerce crowd,” into doing their bidding for them.
Allen: You mentioned S 1, or For the People Act, and a little over a week ago, Senate Republicans blocked a federal election bill, which is the For the People Act. This bill would take, as you say, a lot of power away from states and hand it to the federal government to have control over elections.
Do you think Democrats are going to continue to really try to press this legislation forward even though we've seen it be blocked?
Brnovich: Yeah. I think that the left, what we saw, especially after this decision, was two things: One is them calling for expanding the Supreme Court or making changes to the court. And two, … they used this as their rationale or their reason to try to get HR 1 or S 1 passed or moving forward. So they are going to use this case as an opportunity to expand the size and scope of the federal government.
And they're not happy with the results. So essentially, they want to change the referees or change the rules in the middle of the game. And of course, if you believe in the rule of law and you believe in consistency and certainty in the application of the law, what they're proposing is absolutely the antithesis to that.
And this notion that we're going to have the federal government take over our campaigns and do everything from essentially subsidizing political candidates by some of these matches to not allowing states to have commonsense election integrity measures—like you're not allowing states to have voter ID laws, not allow states to implement measures related to ballot harvesting—it is not consistent with what the framers designed our constitutional system to be.
Quite frankly, it is a huge power grab by D.C. and it'll empower bureaucrats. And I think anyone, whether they're Democrat, Republican, or independent, that cares about freedom and liberty and the Constitution has to recognize that … those are terrible bills, terrible ideas, and they're not only inconsistent with the Constitution, but just bad public policy.
Allen: Attorney General, let's take just a moment and talk about the 2020 election in Arizona. Ballots are still being recounted in Maricopa County, Arizona, from the 2020 presidential election. How do things stand right now and any ideas on when that recount will be completed?
Brnovich: They are moving forward. We have not received any sort of final report or recommendation. But I have previously said, and our courts in Arizona confirmed, that the Arizona Senate has the authority to conduct the audit.
We actually filed a brief saying, “If you believe in the Constitution and separation of powers, that means that you have to defer to coequal branches of government and how they conduct their business.”
So we have said that the Senate has a right to conduct that audit, but one of the things that I've learned in my career as a prosecutor and as a litigator is never to comment on ongoing investigations. And so I think we need to be patient while the Senate completes the audit and we'll see what they come up with. And as I said, we'll make sure we review any sort of recommendations that they provide to us.
Allen: I think a lot of Americans lost some trust in our election system after the 2020 election. How do we go about restoring that trust?
Brnovich: Well, I think people need to recognize that we are doing everything in our office we can to ensure the integrity of elections.
And even this last election cycle, Virginia, there was about half a dozen times where we had to intervene in cases. And in fact, we have an argument tomorrow at the 9th Circuit dealing with our ballot-curing procedures. And the left tried to change those at the last minute here in Arizona and we fought back.
The reason why the case is called Brnovich v. DNC is because I stepped up when other officials wouldn't and made sure we defended our existing integrity laws.
We know that when the county recorder tried to send out mail-in ballots to everyone, whether they requested them or not, during the presidential preference selection, we went into court and stopped that, based on it being an expenditure of public funds.
So there are a lot of things that we have to do on the front end to prevent the chaos in the back end like we saw in other states. And so I'm doing my part. I also think that we need to make sure that we have commonsense election integrity measures that instill that confidence in people in the results.
Allen: And historically, when it comes to election integrity, what are the things that we know help to ensure that elections remain free and fair?
Brnovich: Well, I think every state, every jurisdiction is different. As I said, what happens or what works in Manhattan, Kansas, may not be the same [as] what works in Arizona. But we know absolutely the people have to have … faith and confidence in the process.
We know there are a lot of people that fought very hard over the years, over the decades to ensure that every person has the right to vote. And we want to make sure that no one is disenfranchised.
But there are all sorts of measures, like I said, the ones in Arizona where we have put in place commonsense election integrity measures, I think those work. And I think that it's important that, as the court even noted, that you have to look at all these measures in context.
And in states like Arizona, where we have a whole plethora, where there are a whole lot of ways for people to exercise the franchise, everything from no-excuse absentee balloting, almost a month of in-person voting, ballot collection centers, there are a whole list of ways that people can exercise the franchise. And we just want to make sure that in conjunction with that, that there are measures in place that ensure the integrity of the process.
Allen: Excellent. Attorney General, thank you so much for your time today. We really appreciate you joining the show.
Brnovich: Thank you so much, Virginia.
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