Whom Are We Jailing For Doing Democracy Now?
Democratic election lawyer Marc Elias this week brings us another true story of voter suppression at his Democracy Docket blog. Elias examines how Arizona's 2016 law banning ballot collection has done a bang-up job of making some Latino voters in the state afraid that if they make a mistake while voting, they may end up in jail. After all, that's what happened to Guillermina Fuentes, a 66-year-old grandmother in San Luis, Arizona, after she committed the unspeakable felony of delivering four valid absentee ballots from eligible voters to an elections office so they could be counted.
Ms. Fuentes, the former mayor of San Luis, had no criminal record but got one anyway when she became the first person convicted under the 2016 law. Compared to some election horror stories, like the cases of folks sentenced to years in prison for mistakenly attempting to register to vote (with help from elections officials, even), Ms. Fuentes at least won't spend a long time incarcerated; she was sentenced to 30 days in jail and two years of probation, during which she's barred from voting. But the insanity of it all is that her "crime" — delivering valid votes to the polls — was perfectly legal in Arizona until the 2016 law forbade it.
Also, not at all coincidentally, the law had very clear racist roots, not that the Supreme Court notices that anymore.
As Elias points out, the law, Arizona's HB 2023, likely never would have passed Justice Department scrutiny prior to the Supremes' 2013 Shelby County v. Holder decision, which gutted the "preclearance" portion of the Voting Rights Act. Arizona was one of the nine states whose voting laws and procedures had to be screened by the DOJ or a federal court before it could go into effect, because Arizona had a long history of denying the vote to Latino and Native American voters.
Elias explains that Yuma County, where San Luis is located, is exactly the sort of place that needed — and had, until 2013 — protection under the Voting Rights Act:
As of 2020, the city of San Luis was 98% Latino. The median income was $22,000. The city has no mass transit and many households have no cars. Geographically, it is a three-hour drive from Phoenix and is closer to Mexico than any other city in Arizona. Perhaps most importantly, home delivery is not provided by the U.S. Postal Service, and a major highway separates almost 13,000 residents from the nearest post office. As a result of all of this, many San Luis voters often had to rely on members of their communities to help them deliver their mail-in ballots if they wanted them to be counted.
In 2011, state Sen. Don Shooter (yes really), a Republican who'd barely won reelection in 2010 because Latino voters went for the Democratic candidate, decided it would be a good idea to crack down on Yuma County, part of his state Senate district. He was also the leader of the Yuma County Tea Party, and as Elias says, "Demonizing Latinos living near the Mexico border was the Tea Party’s bread and butter."
State and federal investigations of voting in San Luis found no evidence of illegal voting, but Shooter introduced a bill to limit what he was sure was massive illegal voting by sneaky noncitizens, evidence be damned. The bill would have limited vote collectors to turning in 10 absentee ballots from voters, and would have required they show photo ID when turning in the ballots at elections offices. Shooter claimed that
“political machines fill their car trunks with ballots and then take them to the county recorder’s office.” He wanted to “prevent people from bringing in ‘buckets full of ballots.’”
The state Senate didn't move Shooter's bill forward once the DOJ said it was likely to violate the Voting Rights Act if it were submitted for preclearance, and that was that.
But then in 2013 the Shelby decision determined racism had gone away forever, so Arizona was ripe for another bite at the racist apple. You see, in the early 2010s, more and more Arizona voters preferred voting absentee, especially older voters, who liked the convenience. That was fine when it was white retirees, who mainly voted Republican, but what about those troublesome Latinos who also liked absentee ballots, but who voted for Democrats? Republicans were especially mad that voting rights groups often used ballot collection — still legal at the time — to deliver sealed, legal absentee ballots to election offices.
In 2014, the rightwing chair of the Maricopa County GOP, AJ LaFaro, circulated a video (since deleted from YouTube) showing a Latino man delivering absentee ballots to the Maricopa County elections office drop box during early voting for the primary election. The man wore a T-shirt from the group "Citizens for a Better Arizona," which sounds pretty suspicious, too, since Arizona was just fine already. Yr Wonkette covered the rightwing panic at the time.
MOAR: Latino Guy Delivers Absentee Ballots In Arizona. You'll Never Guess What Happens Next.
In a now defunct blog post (archive link) that got lots of coverage in rightwing media, LaFaro described how he "watched in amazement" as the man "dropped a large box of hundreds of early ballots on the table and started stuffing the ballot box" (with sealed, legal ballots). He claimed he confronted the man and demanded to know who he was — because white guys get to do that — but the man said it was none of LaFaro's business. Even worse, the man told LaFaro "fuck you, gringo" as he left the building, so we all know who the real racist is.
LaFaro explained just how upsetting it was to see someone legally delivering sealed legal absentee ballots to an election office, because it was so traumatizing:
I don't know if that person in the video is an illegal alien, a dreamer or a citizen. What I do know is that he was a vulgar, disrespectful, violent thug who has no respect for our laws. I would have followed him to the parking lot to take down his tag number, but I feared for my life.
Again: Everything the guy did was perfectly legal, including telling the gringo to fuck off. Happily, no shots were fired.
But there was no more Voting Rights Act preclearance to get in the way, so in 2016 Arizona passed HB 2023, which made it a felony for anyone to collect another person's mail-in ballot unless they were the voter's relative, household measure, or caretaker.
Elias and other attorneys sued to have HB 2023 overturned, and in January 2020, after years of litigation, the Ninth Circuit Court of Appeals ruled it violated Section 2 of the VRA. The decision noted the widespread furor over the video, and determined that "racial discrimination was a motivating factor" in the law's passage. Unfortunately, the Ninth Circuit put its ruling on hold until the Supremes could rule on the appeal, leaving the law in effect.
While that case was pending, the 2020 elections got rolling, and in August 2020, Ms. Fuentes delivered those four valid ballots during the state primary election. A Republican who was running for office in San Luis recorded video of Fuentes delivering the ballots, leading to Fuentes's arrest. Because the Supreme Court hadn't yet ruled on HB 2023, her prosecution was put on hold.
In July 2021, the Supreme Court reversed the Ninth Circuit, ruling that Arizona's law was just peachy, with Samuel Alito writing, "Limiting the classes of persons who may handle early ballots to those less likely to have ulterior motives deters potential fraud and improves voter confidence." Fuentes's case went forward, and in June 2022 she pleaded guilty to one count of "ballot abuse," a felony.
Unfortunately, the real outcome of the case was to reduce the confidence of voters in San Luis. Elias notes that shortly after Fuentes was sentenced in 2022, the New York Times reported that Latino voters there became more fearful of voting, a reasonable response in a state where they're regularly attacked by the Right. Many worry about "receiving a visit from investigators, being monitored by activists or running afoul" of the ballot collection law — and no, there still isn't home mail delivery in San Luis. Mind you, the official rightwing reply to such fears is that no one should be afraid of voting if they aren't breaking the law, so how about we send armed goons to stake out ballot drop boxes.
And so we can look forward to more rightwing paranoia about "ballot harvesting," and more voter suppression laws, because it makes such an irresistible story to the Right.
[Democracy Docket / Photo: Lisa Zins, Creative Commons License 2.0]
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