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Jacques Billeaud
Associated Press

A three-judge panel considering whether to give an extra 10 days after Election Day to count ballots mailed from Navajo Nation citizens living on the Arizona portion of the reservation peppered lawyers with questions Tuesday over how such ballots would be distinguished for counting from those of other voters.

Six Navajo Nation citizens filed an August lawsuit that seeks more time for authorities to count ballots because mail service on the reservation is much slower and less accessible than other parts of the state. They argued Arizona’s requirement that ballots be turned in to authorities by 7 p.m. on election night would disenfranchise tribal members. Some states like Virginia, Ohio and Nevada accept postmarked ballots that arrive after the election.

Two weeks ago, a lower-court judge rejected the request, saying those seeking the extension didn’t prove the deadline imposes a disparate burden on Navajo Nation citizens as a protected class of voters.

Those seeking to extend the deadline appealed the decision, though it’s not clear whether the 9th Circuit Court of Appeals would rule on the request before the Nov. 3 election. The lawsuit, which seeks a Nov. 13 deadline for counting such ballots, 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 appeals court judges questioned the difficulty of trying to use bits of identifying information on completed ballots to distinguish between Navajo citizens living on the reservation and other voters. Judges Margaret McKeown, Jacqueline Hong Ngoc Nguyen and Robert Whaley heard the arguments, which were livestreamed.

(Related: Navajo citizens challenge mail-in ballot ruling)

One judge said the ballots don’t say whether a given voter is a Native American, much less a Navajo. Another judge said the matter would be complicated further because people who aren’t Navajo may also live on the Arizona portion of the tribe’s reservation, which stretches across New Mexico, Utah and Arizona.

Steven Sandven, an attorney for the six plaintiffs, said postmarks on returned ballots could be used to trace back the voting precincts.

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

“The danger here is less opportunity (to vote),” Sandven said.

The League of Women Voters of Arizona filed a brief of support of the plaintiffs and were granted permission to present arguments in Tuesday’s hearing.

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Michael Donofrio, representing the league, questioned the district court's analysis and said the case presents a critical issue about protecting voting rights.

Democratic Secretary of State Katie Hobbs, the target of the lawsuit, opposed the extension request, arguing that creating a rule for only Navajo Nation citizens would cause confusion among other voters and create administrative challenges for election officials.

Roopali Desai, an attorney representing Hobbs, raised the possibility that other Native people in Arizona could erroneously believe such an extension would apply to them, when the lawsuit sought the extension for only Navajo Nation citizens who live on the reservation.

In rejecting the extension request, Judge Murray Snow ruled on Sept. 25 that while most Navajo Nation residents don’t have access to home delivery of mail and must travel long distances to get mail, those seeking the extension compared mail delivery times on the reservation only to cities, not other rural areas in the state.

The judge also said Navajo Nation citizens 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.

Attorneys for those seeking the extension said Snow didn’t consider that Native American voters are a protected class of voters, and non-Native people who live in rural areas aren’t.

Earlier in the case, President Donald Trump’s campaign, which wasn’t named as a party in the lawsuit, tried unsuccessfully to make arguments against the lawsuit.

Audio and video replay of Tuesday’s court hearing is expected to be posted online here.

The hearing comes after a separate court-ordered extension pushed back Arizona’s voter registration deadline to Oct. 23. The 9th Circuit Court of Appeals is also considering whether to put the extension on hold after a Monday hearing. Arizona has recorded more than 28,000 new registrations in the days since the deadline was extended.

The new registration deadline currently falls on the same deadline day to request a ballot-by-mail in Arizona.

Other legal action has taken place Indian Country related to voting rights, including a case involving the Pascua Yaqui Tribe in southern Arizona. The tribe filed a lawsuit on Monday against the Pima County Recorder over the closure of the only in-person early voting site on the reservation.

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Indian Country Today contributed to this report