BREAKING: Arizona Republicans lost the election. Again.

The latest confirmation comes thanks to the Arizona Court of Appeals, which upheld a trial judge’s ruling that mail-in ballots do not violate the Arizona Constitution’s requirement that “secrecy in voting shall be preserved.”

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In a complaint filed in May of 2022, the Arizona Republican Party and its Chairwoman Kelli Ward contested a 1991 law that provides for no-excuse absentee balloting. In their telling, mail-in ballots fail to preserve secrecy because the voter might fill them out in a room with other people. Which seems straightforwardly stupid enough, but naturally it devolved into a fever dream about vote fraud:

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The fact that early ballot envelopes include a voter’s name and address also creates problems beyond the obvious. While this may not seem like much information, political advertising is a sophisticated business. Anyone with money to spend may purchase access to highly detailed voter databases. By crossreferencing these databases with a voter’s name and address, political consultants can figure out much more than whether a given voter is likely to be a Republican or Democrat. That is child’s play. The good ones can tell you that voter is 3% more likely to vote for a given presidential candidate because they are a blue-collar worker. Indeed, they can access almost 30 “basic demographic variables” about that voter and say exactly which messaging is most likely to change their opinion on any given issue.

Not a problem for voters who vote in person on election day – their ballot is never attached to any identifying information. But for voters who vote early, all this information and more might as well be stapled to their ballot as it sits in their mailbox and passes through hand after hand, none of which belong to election officials, on the way to the counting center. That hardly comports with a layperson’s notion of secrecy in voting, much less what the framers had in mind.

Unsurprisingly, this argument failed to convince either the trial court or the appellate panel. In a brief decision, Judge Cynthia J. Bailey held that “Arizona’s mail-in voting statutes ensure that voters fill out their ballot in a manner that does not disclose their vote and that voters’ choices are not later revealed.”

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So, once again, Republican efforts to get rid of a voting method they long relied on now that Democrats have started using it runs smack into a brick wall. But while Kelli Ward and her fellow AZ Gippers are rubbing their heads and wondering why this keeps happening, we are scratching ours in confusion. Because the plaintiffs in this case were represented by local counsel as well as one Professor Alan Dershowitz, who needs no introduction. And last week he placed a whole bunch of affidavits on the federal docket in Arizona saying that he’s just a simple, country constitutional consultant that doesn’t do state law issues.

“I am 84 years old and mostly retired from the practice of law and teaching. I limit my role to consultation on legal and constitutional issues. I have no office staff and my medical conditions – I have had three strokes – limit my travel and court appearances,” he burbled in explanation as to why he shouldn’t be sanctioned in a case brought by losing gubernatorial candidate Kari Lake.

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“I am in bed with Covid now,” he added for good measure, explaining that he couldn’t possibly be held responsible for having his name on a complaint rife with factual and legal misstatements because “I am not an expert on voting machines, but I am an expert on constitutional law, and I have limited my advice to the area of my expertise.”

And yet, here he is, admitted pro hac vice in a state case with exactly zero federal claims and no federal constitutional implications. Almost like he’s willing to put his name on documents if you pay him, regardless of whether there’s any nexus to the US Constitution, not to say objective reality.

Arizona Republican Party v. Hobbs [Docket via Democracy Docket]
Lake v. Hobbs [Docket via Court Listener]

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Liz Dye lives in Baltimore where she writes about law and politics.

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Alan Dershowitz, Election Law, Government