Arizona Secretary of State Katie Hobbs misconstrued the "fundamental requirements" of the 1965 law when she argued that it's enough for Navajo voters to have ways to cast their ballots on Nov. 3, the tribe members said in opposition papers on Thursday. The real issue is that any one voting option is less accessible to them than other Arizonans, they claimed.
"Every means of voting offered to the one segment of the electorate must be fundamentally and equally available to the entire electorate," the Arizona Navajo voters wrote. "Anything less than that is a violation of Section 2 [of the act] on its face."
In their Aug. 26 complaint, Darlene Yazzie and five other Navajo members living in Arizona asked the court to order the state to accept ballots postmarked by Nov. 3 — the date of the upcoming election — as long as they are received by Nov. 13.
The plaintiffs on Thursday pointed to a U.S. Department of Justice's Voting Rights Act applicability test submitted in the 2016 Nevada voting rights discrimination suit Sanchez et al. v. Cegavske et al.
"Plaintiffs do not need to show that they have no opportunity to vote," the Navajo voters said. "Plaintiffs must only show that they have 'less opportunities' to vote as compared to other voters, in this case in their county and state."
When it comes to mail-in voting, that threshold is clearly met, the Navajo voters said. Navajo voters in Arizona have few post offices, they said, and those that exist have reduced hours of service. The majority of Navajo voters in Arizona do not get at-home mail delivery.
According to the complaint, these and other factors mean tribal members could have as much as 10 fewer days to submit their votes by mail compared to non-Indian voters in "affluent areas," such as Scottsdale.
Counsel for the parties did not immediately respond to requests for comment.
In her Sept. 16 motion to dismiss, Hobbs said that the Navajo plaintiffs "do not explain why it is not possible for them to return their completed ballots in time to meet the existing deadline, given the expansive time frame that state law affords voters to vote by mail."
Hobbs also listed alternative voting options available to Navajo voters in Arizona, including in-person voting on and before Election Day.
"The existence of alternative voting means or accessibility does not otherwise absolve the defendant of the requirement to make all 'opportunities' available," the Navajo voters countered on Thursday.
The Trump reelection campaign and the Republican National Committee sought to intervene in the suit earlier this month, but the court rejected their bid, according to their counsel.
The Navajo Nation members are represented by Chris McClure and by Michael J. Novotny of Big Fire Law & Policy Group LLP.
Hobbs is represented by David Andrew Gaona, Kristen Michelle Yost and Roopali H. Desai of Coppersmith Brockelman PLC and Marty Harper of ASU Alumni Law Group.
The Trump campaign, the RNC and the other proposed intervenors are represented by Brett W. Johnson, Eric H. Spencer, Colin P. Ahler and Derek C. Flint of Snell & Wilmer LLP.
The case is Yazzie et al. v. Hobbs, case number 3:20-cv-08222, in the U.S. District Court for the District of Arizona.
--Additional reporting by Andrew Westney. Editing by Nicole Bleier.
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