PHOENIX — Two groups with ties to Republican interests are charging that new election rules adopted by the Democratic secretary of state interfere with free speech and could disenfranchise many Arizona voters.
The lawsuit filed in federal court here by American Encore and the America First Policy Institute claims what Adrian Fontes put into the Elections Procedures Manual about harassment of voters and election officials is so broad and nebulous that it could criminalize otherwise legal conduct. And that could lead to four months in jail and a $750 fine.
Former Supreme Court Justice Andrew Gould, representing the two groups, said the manual allows election results to be certified even if one or more counties refuses to first do its own certification.
This is more than an academic question. In 2022 Cochise County supervisors balked at doing the canvass, with the two Republicans on the three-member board saying they had questions. It took a court order to get the canvass done.
But Gould said rather than requiring the secretary of state to force the issue — as happened in 2022 — the manual says he can simply finalize the results and declare winners. He said that means the votes of everyone in a county that didn’t certify, for every office up and down the ballot, simply do not count.
The groups want U.S. District Judge Michael Liburdi to block Fontes from enforcing it.
A spokesman for Fontes said he has no comment.
‘Insulting or offensive speech’
The Elections Procedures Manual is required by state law. It is designed to provide more specific instructions and guidance than the Elections Code, a set of statutes, adopted by the Legislature.
It is crafted by the secretary of state but also must be approved by the governor and the attorney general.
Gould is charging, at least in part, that what Fontes put into the manual goes beyond what is allowed under state law.
He takes specific aim at a provision that prohibits “any activity by a person with the intent or effect of threatening, harassing, intimidating or coercing voters.’’
Gould acknowledges that the state Elections Code makes it a crime to use force or violence, threatening to inflict injury, intimidation or fraud against voters. But he said the rules Fontes adopted in the manual lack any requirement that these actions be related to voting.
The lawsuit says the provision is a violation of First Amendment rights.
For example, Gould says the manual lists various things that may be considered intimidating conduct inside or outside a polling place, including aggressive behavior such as raising one’s voice or taunting a poll worker.
Also potentially criminal would be using “insulting or offensive language’’ to a voter or poll workers. So, too, would be “posting signs or communicating messages about penalties for ‘voter fraud’ in a harassing or intimidating manner.’’
Gould says any ban on “insulting or offensive speech’’ is an unlawful content and viewpoint-based restriction and violates First Amendment rights.
“Giving offense is a viewpoint,’’ wrote Gould, who was an unsuccessful Republican 2022 candidate for attorney general.
The provision is also illegal, he argues, because open-ended terms like “insulting or offensive language’’ do not provide sufficient guidance to inform members of the public what is permitted and what would result in criminal penalties.
“For example, would wearing a MAGA hat, an ‘All Lives Matter’ button or an ‘I Support the Second Amendment’ T-shirt constitute ‘offensive speech’ or be considered ‘harassing’ to a voter that sees them?’’ Gould asked. Laws can be voided as illegally vague if they fail to tell a reasonable person what is and is not illegal.
The lawsuit claims the restriction is “nearly unrestrained’’ in its application.
“There is no temporal limitation: It applies equally on Election Day and all other days of the year,’’ Gould wrote. He said it also lacks any geographic limits.
“It applies both inside and outside the 75-foot limit of electioneering activity at voting locations,’’ Gould said, saying that translates to “every square inch of territory within Arizona’s borders.’’
‘Disenfranchisement’
The provision on election certification, Gould said, create a different — and he says avoidable — problem.
It says that if the official county canvass has not been received by the deadline “the secretary of state must proceed with the state canvass without including the votes of the missing county.’’ That, said Gould, means the votes of the residents do not matter and will not be part of the computation of who wins and loses.
“It does so even where the voters in the county are entirely faultless and have complied with all requirements for exercising their constitutional right to vote,’’ he said, such as voting before the polls close, presenting identification for in-person voting, or signing a mail-in ballot.
“This disenfranchisement extends to every single vote cast by the voters from presidential elections all the way down to whether to retain a justice of the peace,’’ Gould wrote.
It was only because a judge ordered the Cochise supervisors to comply and certify the 2022 vote that the situation was avoided at that time.
But fallout remains, including the indictment of Republican Supervisors Tom Crosby and Peggy Judd on charges of conspiring to delay the election results and illegally interfering with an election official. A trial is set for next month but may be delayed.
“The state has an interest in orderly election procedures and producing timely results,’’ Gould acknowledged. But he told Liburdi there are better — and more narrowly tailored — ways to deal with it.
For example, he said the manual could simply require the secretary of state to go to court and ask a judge whether the missing uncertified results should be included in the statewide totals. Or, Gould said, it could direct the secretary to appoint an auditor to determine the correct results.
No date has been set for a hearing.
The groups’ backgrounds
American Encore is an Arizona-based group run by Sean Noble that bills itself as promoting free enterprise policies.
It also has funneled money into political campaigns in Arizona, including helping Republican Doug Ducey win his first gubernatorial race in 2014. It also was fined by the Federal Elections Commission for concealing the source of funds used in campaigns in other states.
America First Policy Institute was formed in 2021 by allies of Donald Trump to support a free market and Trump policies.
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