CLC, in partnership with the ACLU-Arizona, is suing the sheriff and recorder in Apache County, Arizona seeking transparency about how the county guarantees incarcerated citizens their constitutional right to vote.

While people who are convicted of felonies in Arizona lose their right to vote, those who are held in pre-trial detention or who are incarcerated for misdemeanors retain their voting eligibility. In practice, however, it can be incredibly difficult to cast a ballot in jail. Doing so depends on Arizona jail and election officials providing a means for incarcerated voters to cast their ballot.

To better understand how recorders and sheriffs in Arizona realize their obligation to enfranchise jailed voters, CLC is working on a statewide data collection project as a member of the Arizona Coalition to End Jail Based Disenfranchisement, which advocates to remove barriers to voter education and participation so that eligible individuals can be included in the process.

The coalition sent three records requests each to the recorders and sheriffs in all of Arizona’s 15 counties: one request following the March 2020 Presidential Preference Election; one following the August 2020 Primary Election; and one following the November 2020 General Election. In total, we sent 90 records requests to Arizona officials.

The overall response rate was abysmal: of 90 requests, 48 remain unfulfilled as of January 2021. That includes 16 requests that were sent in March 2020, meaning that they have gone unanswered for 10 months.

Arizona’s public record law requires the government to “promptly” disclose public records. The sheriff and recorder of Apache County—the worst culprits among many Arizona elected officials—have failed to meet that obligation. Thus, in January 2021, CLC and ACLU-AZ filed suit against these offices for their failure to provide the records CLC requested—much less deliver them “promptly”—or even any explanation for why the records are being withheld.

Transparency is one of the key components of a representative democracy, particularly when it comes to the protection of the constitutional rights held by its citizens. Without any information from county sheriffs or recorders, it is virtually impossible to determine whether incarcerated voters are being allowed to exercise their most fundamental right, the right to vote. This issue demands public oversight, as Apache County’s elected officials have evaded accountability for too long. CLC’s lawsuit demands that these offices provide the records needed to hold elected officials responsible and guarantee the rights of all citizens.

An organization called Empower Texans, Inc., and Michael Quinn Sullivan (“Appellants”) initiated a lawsuit seeking to prove that the enforcement powers granted to the Texas Ethics Commission by the state constitution and the state legislature are unconstitutional. Appellants argue that the Commission is a legislative branch agency, and therefore does not have the constitutional authority to enforce laws regarding political expenditures and lobbying.

CLC filed an amicus brief this month in support of the Commission. Our brief explains that the Commission's authority comes from the Texas Constitution that explicitly authorizes the state legislature to delegate to the Commission the “powers and duties” necessary to achieve its purpose of transparency and integrity of Texas state elections.

 Appellants’ contention that the Commission cannot enforce campaign finance and lobbying laws in the state has no basis. The Commission and the interests they serve are important and are closely aligned with its peers in other states. The trial court was right to reject Appellants’ argument, which attempts to undermine nearly 30 years of accountability and transparency in Texas. The circuit court should affirm the trial court to uphold transparency in election spending, sustain government accountability, and decrease the influence of wealthy special interests in Texas’s political system.  

What’s at Stake

State ethics commissions are instrumental in ensuring government accountability and have been a staple of American democracy for more than 50 years. The commissions help increase voter confidence in policymakers and political institutions. Forty-Six states have ethics commissions and 36 of those states have granted their commission's broad jurisdictional authority over state executive branch officials and legislators.

Across the country, voters, legislators and courts have seen that strong political transparency laws are essential to protecting the public’s interest in open and accountable government. Weakening the Commission’s power to enforce the comprehensive campaign finance and lobbying disclosure laws would diminish the public’s trust in government.   

Section 2 of the Voting Rights Act prohibits any voting law or procedure that “results in a denial or abridgement of the right of any citizen...to vote on account of race or color.” Plaintiffs challenging a state’s election law or policy under Section 2 must demonstrate that the challenged law “results in” the disparate impact, and that the disparate impact occurs “on account of” race, color, or membership in a language minority group. 

In 2016, several groups affiliated with the Democratic Party, including the Democratic National Committee, sued the State of Arizona challenging Arizona’s policy that ballots cast in the wrong precinct must not be counted and its prohibition on the collection of absentee ballots by third parties. After numerous hearings and proceedings at both the District Court and Circuit Court levels, the U.S. Court of Appeals for the Ninth Circuit, ultimately concluded that Arizona’s out-of-precinct policy and ballot-collection prohibition violated Section 2 of the Voting Rights Act, finding that the laws resulted in a racially disparate impact on Arizona’s Latino and Native American voters.

CLC filed an amicus brief with the U.S. Supreme Court on Jan. 20, 2021, arguing that the Ninth Circuit applied the appropriate standards when it determined that Arizona’s election laws violated Section 2, and that those standards underscore that Section 2 is a rightful exercise of Congress’s authority to enforce the Fourteenth and Fifteenth Amendments.