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At a hearing Wednesday, GOP attorney Alexander Kolodin told the state Court of Appeals that the ÃÛèÖÖ±²¥ Constitution requires all voting be done in a way to protect secrecy.

He said there is no way to ensure that people who have early ballots that they can fill out anywhere have not sold their votes to someone else or been intimidated. The only way to do that, Kolodin said, is to have votes cast at an official polling place where government officials can watch to ensure that no one else is interfering as people fill out their ballots and drop them in tabulation machines or boxes.

But two appellate judges questioned whether outlawing voting by mail is really necessary to protect secrecy.

And attorney Andy Gaona, representing Democratic Secretary of State Katie Hobbs, pointed out there already are laws on the books making vote buying and voter intimidation crimes. Those laws fulfill the constitutional requirement for secrecy, he said.

“That’s how governments work,’’ Gaona said. “The way that we regulate behavior and preserve secrecy is by enacting statutes that protect it.’’

Kolodin, however, said those statutes are ineffective and don’t provide the protections the framers of the ÃÛèÖÖ±²¥ Constitution wanted.

“There is virtually no way to detect vote buying and coercion after the fact,’’ he said.

Vast majority vote early

ÃÛèÖÖ±²¥ has allowed some form of early voting for more than a century, encompassing everyone from those in the military and those not in the county on Election Day to people who are infirm or at least 65 years old.

Republicans are not challenging those statutes. Instead, the party wants laws repealed that have been on the books since 1991 and permit anyone to request and receive an early ballot.

Voiding the law would do more than affect the vast majority of ÃÛèÖÖ±²¥ns who like the convenience of voting by mail. There also are political implications.

In the 2020 presidential race in ÃÛèÖÖ±²¥, Republican Donald Trump outpolled Democrat Joe Biden by nearly 124,000 votes among those who went to the polls. But Biden gained almost 139,000 more votes among early voters than Trump.

And this year, unsuccessful GOP gubernatorial candidate Kari Lake had a 190,000-vote lead over Hobbs among those voting at polling places. But Hobbs made that up — and more — among those casting early ballots.

During Wednesday’s arguments, Kolodin did not address the popularity of the practice or how it might affect voter turnout. Instead, he told the judges they should focus on the fact it’s virtually impossible to catch someone, after the fact, whose early vote was voluntarily sold or whose decisions were affected and coerced by someone watching over a shoulder, even a spouse.

Voters allowed to get help

Kolodin said the court needs to acknowledge a provision in the state Constitution, dating back to when ÃÛèÖÖ±²¥ became a state, that says “secrecy in voting shall be preserved.’’ That means ensuring there is a “protected zone around the voter,â€� he said.

But appellate judge David Gass said there’s a flaw in the argument.

He pointed out that ÃÛèÖÖ±²¥ law specifically allows a voter to get help from anyone they want in filling out their ballots.

“And that involves a second person providing assistance, whether that’s a family member or even somebody who’s a member of the polling board,’’ meaning an election worker, Gass said. He said what Kolodin is arguing would preclude even that.

Judge Cynthia Bailey said she also was troubled by how Kolodin was trying to draw the line in a way that would leave those laws and practices intact — and legal — while voiding the ability of others to exercise the same right to fill out their ballot and vote remotely from home.

“You’re saying the zone can’t be violated or the Constitution is violated,’’ she asked. “So help me understand why my kitchen is different from a place with walls up but someone standing in the booth with me.’’

It’s not just people getting help filling out the ballot where the law does not require absolute secrecy. The judges pointed out that the GOP is not challenging someone 65 or older being able to get an early ballot and fill it out at home, or members of the military who are deployed elsewhere being able to vote by mail.

For Legislature, not courts?

Gaona told the court the Republican Party’s arguments of a constitutional violation fall short.

He said the Legislature in 1991 was free to expand the laws to provide no-excuse early voting, and that the law “protects secrecy to the extent that it can.’’

What Kolodin and the GOP are seeking, Gaona said, is a change in policy, something they should be asking the Legislature to address rather than the courts.

In fact, he told the judges Kolodin will be in the position to do just that. Kolodin won his race this year to be a member of the Legislature, and he has been appointed the vice chair of the House Committee on Municipal Oversight and Elections.

The judges did not indicate when they will rule.

Some in GOP oppose the change sought

Not everyone in the Republican Party is interested in killing early voting.

Gov. Doug Ducey told Capitol Media Services on Wednesday he uses an early ballot, though he drops it off at a polling place on Election Day. The Republican governor said his party should spend more time getting supporters to use those early ballots to vote for their candidates rather than trying to get courts to outlaw the very popular process that is used by close to 90% of all voters.

Legislation approved by the Senate Government Committee in March would have killed voting by mail, along with barring the use of machines to tally votes. But Senate President Karen Fann, R-Prescott, refused to advance the measure, at least in part amid concerns about forcing individuals to stand in line to vote, especially during the August primary.

Kolodin had to take his case to the appellate court because Mohave County Superior Court Judge Lee Jantzen rejected similar claims in June. Jantzen said the 1991 law furthers the goals of promoting voting.