PHOENIX -- An attorney representing several Navajo Nation residents asked a federal appeals court Tuesday to give reservation dwellers more time to submit their ballots and have them counted.
Steven Sandven argued that Judge Murray Snow got it wrong last month when he concluded that the burdens on reservation residents in meeting the 7 p.m. Election Day deadline is no greater than that faced by residents of other rural areas of the state. As such, Snow concluded, the deadline does not violate the federal Voter Protection Act.
But Sandven told the appellate judges the test is whether Native Americans, as a "protected class'' under federal law, have the same opportunity to vote as all other non-Indians in the state, regardless of where they live. The record, he said, shows that is not the case.
He said this is more than just the fact that mail to and from from rural areas takes longer, leaving reservation residents less time to consider the issues than non-Indian voters before they have to send their ballots back.
For example, Sandven said, in Scottsdale there is one election day polling place for every 13.4 square miles versus one location on the Navajo Reservation for 306 miles.
On top of that, he said, there is no home delivery for most of the reservation, the distance to the post office "and the fact that many Navajo Nation members have insufficient funds to travel to a post office.''
All that, Sandven said, is that tribal members have less opportunity to exercise their right to vote than other voters.
"We don't need to show that they have no opportunity to vote,'' he said.
"There's no dispute as to the nature of those conditions and the effect that those conditions have in terms of making it more difficult for these voters to access the ballot.''
But members of the three-judge panel hearing the case were not sure they can provide the relief he wants: requiring ballots from Navajo Nation addresses to be counted if they are postmarked by 7 p.m. on Election Day.
Judge Margaret McKeown said there's no evidence that ballot envelopes actually get a postmark, despite an order to the U.S. Postal Service in a separate case out of New York to do so this year.
Even if they do, there's the sorting question.
Assuming county recorders could figure out which ballots came from on-reservation addresses, there are, in fact, people who are not Native American who live there and who are entitled, based on their "protected status,'' to more time to turn in their ballots.
Roopali Desai, who represents Secretary of State Katie Hobbs, told the appellate judges there are even more basic questions. It starts with the fact that the lawsuit filed on behalf of six members of the Navajo Nation names only Hobbs as the defendant.
But Desai said her client has nothing to do with receiving or counting ballots -- or even can tell the county recorders what to do. She said anyone seeking to change the deadline must also sue the recorders.
Desai also questioned whether the six plaintiffs even have legal standing to sue in the first place because they never claimed any actual injury from the deadline.
"There are no allegations in the complaint, nor did any of the plaintiffs testify at the injunction hearing about the fact that they intend to participate in the 2020 election, that they are planning to use themselves a vote-by-mail ballot,'' she said. "And there is no evidence in the record that they have ever previously submitted a ballot that was rejected because they suffered from some sort of mail delay or the fact that their ballot was too late to be counted.''
Desai told the judge that Hobbs acknowledges the hardships that are faced by members of the Navajo Nation including poverty, isolation, problems with traveling on the reservation and unreliable mail service.
"But those harms are not traceable to the secretary or, more importantly, to the receipt deadline,'' she said.
And there's one more thing.
Desai pointed out that the lawsuit specifically seeks the extra time solely for those living on the Navajo Reservation. She told the appellate judges if they were to grant that request it likely would result in confusion.
"What is somebody who is a member of the Pascua Yaqui tribal nation in southern Arizona thought that the order ... intended to allow all Native Americans in Arizona to postmark their ballot as opposed to having it returned on the Election Day receipt deadline?'' she asked the appellate judges. "Would it apply to one Native American voter versus another?''
The appellate judges gave no indication when they will rule -- and whether that will come in time for this year's election.