By Andrew Westney

Law360 (September 4, 2020, 5:16 PM EDT ) The Trump reelection campaign and the Republican National Committee have asked to step into an Arizona federal court suit by Navajo Nation members seeking more time to mail in their ballots for the upcoming election, claiming the members are seeking an unfair exception to state law and that the Democratic secretary of state is likely to oppose the campaign's interests.

Darlene Yazzie and five other Navajo members hit Arizona Secretary of State Katie Hobbs with an Aug. 26 complaint alleging that the state's law requiring that ballots be received by election day violated the U.S. and state constitutions and the Voting Rights Act of 1965 because ballots often take much longer to mail on the Navajo reservation. The Navajo members 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.

Donald J. Trump for President Inc., the RNC, two national Republican committees, the Arizona Republican Party and three county Republican committees said Thursday they should be allowed to intervene to block the Navajo members' bid "to create a race- and geography-based exception to a long-standing, generally applicable state law that would give certain citizens more time to return their requested early ballots than every other Arizona voter."

Making the changes the members ask for "would unquestionably affect the share of votes that candidates in the state of Arizona receive" and "sow confusion and delay in the administration of the upcoming general election and all future elections," according to the motion.

And Hobbs "has conflicting interests in defending against such claims," as shown by her arguments in other lawsuits, including reaching a settlement in a similar suit, the groups said.

"The Secretary should not be criticized for her recent litigation positions (after all, she has a significant voice in Arizona election policy) but history demonstrates she should not be the only voice defending against radical lawsuits that seek to chip away at Arizona's electoral fabric," the groups said.

Darlene Yazzie, Caroline Begay, Leslie Begay, Irene Roy, Donna Williams and Alfred McRoye said in their complaint that the COVID-19 pandemic "has triggered an extraordinary increase in voting by mail."

But U.S. postal service slowdowns during the pandemic, the geographical isolation of much of the Navajo reservation and other factors mean tribal members have as much as 10 fewer days to submit their votes by mail compared to non-Indian voters in "affluent areas" such as Scottsdale, according to the complaint.

The Navajo members asked the court Wednesday for an emergency preliminary injunction to force Arizona to count mail-in ballots postmarked by Nov. 3.

The Trump campaign and the RNC said in their motion Thursday that they should be allowed to intervene because they "have a significant interest in ensuring that their supporters' votes and their candidates' vote shares are not diluted by illegal maneuvers or abuses of judicial proceedings that would impact candidates' and voters' right to a fair election."

Giving the tribal voters more time would "force candidates to "recalibrate their electoral strategies," and "create significant delays in election results," the groups said.

And Hobbs "has made clear that her interests are not aligned with those of President Trump with regard to voting-by-mail," including asking the Republican state Attorney General Mark Brnovich in mid-August "to investigate the Trump administration's alleged recent proposed changes to the U.S. Postal Service," the groups said.

"Because the Secretary is on record making the same (unfounded) vote-by-mail allegations as the plaintiffs, she can hardly be expected to defend the postal allegations in the complaint," according to the motion.

Hobbs has also argued for an interpretation of Section 2 of the Voting Rights Act that is at odds with the proposed intervenors' stance, the groups said.

Hobbs and the Democratic National Committee urged the U.S. Supreme Court in July to deny U.S. Supreme Court petitions by Brnovich and the Arizona Republican Party seeking review of a Ninth Circuit majority ruling that found two Arizona voting regulations discriminated against Native American, Hispanic and Black voters.

And the secretary in June settled a suit brought by Voto Latino Foundation and others, agreeing to conduct a feasibility study of using a postmark deadline in elections following the November 2020 election.

With that settlement, "the Secretary committed to explore a postmark deadline as a desirable outcome and has an incentive to ultimately reach that conclusion, lest she be sued by those litigants again," the groups said. "This weighs as a factor in the Secretary's continued ability to defend the Election Day deadline without granting further concessions simply to avoid litigation (and political fallout)."

Hobbs said in a statement Friday on the suit, "I understand [the plaintiffs'] concerns, which is why we are prioritizing outreach efforts in parts of the state that don't have consistent postal service."

"Under the current circumstances, we have to make sure voters are aware of the options available to them. This includes returning a ballot-by-mail as soon as possible or taking it to a secure drop box or a voting location," Hobbs said in the statement.

OJ Semans, the executive director of Native voting rights group Four Directions and an enrolled member of the Rosebud Sioux Tribe whose group is supporting the Navajo members, told Law360 on Friday that the Trump campaign and RNC are "trying to muddy the waters" with their intervention bid.

"The basic thing people need to consider is, no matter how much mud they throw at the wall, it's about equality," Semans said. "It's about giving Natives the same amount of time to vote as non-Natives."

And while the state has emphasized voter education, "if you're still 38 miles from the nearest post office, educating them isn't going to do any good," he said.

Representatives for the proposed intervenors were not immediately available to comment Friday.

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.

--Editing by Peter Rozovsky.

Update: This article has been updated with comment from the executive director of Native voting rights group Four Directions. 

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