Navajo Nation voters file lawsuit to force Arizona to count mail-in ballots that arrive after Election Day

Several Navajo Nation citizens with concerns about the U.S. Postal Service are asking a court to ensure their ballots will still be counted in Arizona even if delivered late.

The group filed a lawsuit in federal court Wednesday challenging the state’s current law, which says election officials cannot count mail-in ballots received after election night.

The lawsuit contends that mail service is so much slower and less accessible for many Arizonans living on reservations that the existing deadline will disenfranchise some voters even as they put their ballots in the mail well in advance of the state's deadline.

The group wants a federal judge to require Arizona election officials to count ballots delivered up to 10 days after Election Day as long as the ballots come from tribal members living on reservations and are postmarked on or before the day of the election.

The lawsuit filed in U.S. District Court for the District of Arizona comes amid heightened concerns about the Postal Service's ability to deliver a smooth election as a record number of Americans are likely to cast ballots by mail. Officials are promoting the method as a safe alternative to lining up at polling places during a pandemic.

Under new Postmaster General Louis DeJoy, the Postal Service has made changes to limit overtime for workers and increase efficiency, which according to an internal memo, could result in mail temporarily being delayed. DeJoy said he is suspending several changes until after the election. Still, the Postal Service recommends mailing ballots seven days before Election Day, instead of the six days previously recommended in Arizona.

While the lawsuit pointed to this recent upheaval at the Postal Service, it also underscored longstanding issues with mail delivery and infrastructure in rural Arizona.

"Voting by mail systems rest upon the premise that all citizens have equal mail service, however, hundreds of thousands of rural Americans have non-standard mail service burdened with a range of service limits including irregular service or unreliable service, no residential delivery, excessive distances to post offices or other postal providers with limited hours of operation among other issues," wrote lawyer Michael Novotny, who is representing the group.

Novotny cited data by Four Directions, a voting rights group backing the lawsuit which said it recently tested postal delivery. The group found that while certified first class mail from Scottsdale arrived at the Maricopa County Recorder's Office less than 18 hours later, certified mail sent from locations in the Navajo Nation took five to six days to reach local county recorders. That mail was routed through Phoenix and Albuquerque in some cases, taking routes that stretched hundreds of miles.

Four Directions and the lawsuit filed Wednesday argued the unequal access to voting by mail violates the Voting Rights Act.

"I understand their concerns, which is why we are prioritizing outreach efforts in parts of the state that don't have consistent postal service," Hobbs said Wednesday. "Under the current circumstances, we have to make sure voters are aware of the options available to them. This includes returning a ballot-by-mail as soon as possible or taking it to a secure drop box or a voting location."

The Secretary of State's Office said it would comply if the court rules differently.

Many states accept postmarked ballots received after Election Day, and Arizona's deadline has been the subject of ongoing debate and litigation.

Voto Latino and a Democratic super PAC, Priorities USA, challenged the deadline in court last year. They wanted election officials to count ballots that are postmarked by Election Day and arrive within five business days of polls closing.

The Secretary of State’s Office defended the current deadline in that case.

"This prevents voter confusion and permits voters to make informed decisions about when and how to cast their ballots. The deadline ensures county officials have a known universe of ballots to process before the canvass. It also provides confidence to the voting public that post-Election Day votes are not changing the outcome in tight races," the state’s lawyers wrote in response to that lawsuit.

Hobbs settled the case earlier this year by committing to more voter education and awareness efforts.

Contact Andrew Oxford at andrew.oxford@arizonarepublic.com or on Twitter at @andrewboxford.