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Court rejects bid to extend ballot counting on Navajo Nation

October 16, 2020 GMT

PHOENIX (AP) — An appeals court has refused to give an extra 10 days after Election Day to count ballots mailed by Navajo Nation members living on the Arizona portion of the tribe’s reservation, ruling that a later deadline for Navajos would burden election officials who wouldn’t be able to tell from ballots whether voters are members of the tribe.

The 9th Circuit Court of Appeals concluded on Thursday that the Navajos who sued for the extension because of slow mail delivery on the reservation had no legal standing to sue and raised questions about the difficulty of using information on ballots to try to distinguish between Navajos living on tribal lands and other voters.

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While the lawsuit alleged tribal members would be disenfranchised by the requirement that ballots be received by 7 p.m. on Election Day, the judges said the six Navajos who sought the extension didn’t demonstrate they would be harmed by the current deadline, noting they didn’t say whether they intended to vote in the Nov. 3 election and, if so, whether they intended to do it by mail.

It’s unclear whether the decision will be appealed to the U.S. Supreme Court. Steven Sandven, an attorney for the Navajos who filed the lawsuit, didn’t immediately return a call seeking comment on Friday.

The legal challenge was filed amid concerns that the U.S. Postal Service will not be able to properly handle a crush of Americans voting by mail.

The lawsuit said the extension was needed because mail service on the reservation is much slower and less accessible than other parts of the states. It argued that the state should count the ballots in question if they are postmarked by Election Day and received by election officials up to 10 days later.

Their lawyers said people who aren’t Native American and live in affluent communities such as Scottsdale would have 25 days to consider their ballot, compared with as few as seven days for people living in certain Navajo Nation communities.

Democratic Secretary of State Katie Hobbs, the target of the lawsuit, had opposed the extension request, arguing that creating a rule for only Navajos would create administrative challenges for election officials and could cause confusion among other voters, such as the possibility that members of other tribes could erroneously believe such an extension would apply to them.

A lower-court judge rejected the request two weeks ago on different grounds.

U.S. District Judge Murray Snow had said those seeking the extension didn’t prove the deadline imposes a disparate burden on Navajos as a protected class of voters.

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While most Navajo Nation residents don’t have access to home delivery of mail and must travel long distances to get mail, Navajos have other options for delivering completed ballots, such as dropping them off at county recorders’ offices, in drop boxes, at early voting locations or at polling places on Election Day, Snow wrote.

Though six Navajos sued to extend the counting deadline, the Navajo Nation wasn’t a party to the lawsuit.

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Associated Press writer Bob Christie in Phoenix contributed to this report.