Judge's order came too late on polling place rules, Arizona official argues

PHOENIX — Saying it’s too late to comply now, Secretary of State Adrian Fontes wants a judge to delay her order immediately blocking election officials from enforcing some rules about behavior in and around polling places.

In new legal filings, Assistant Attorney General Nathan Arrowsmith contends that Maricopa County Superior Court Judge Jennifer Ryan-Touhill got it wrong when she ruled some provisions of the Elections Procedures Manual likely violate state and federal constitutional provisions.

He argues that his office, representing Fontes and Attorney General Kris Mayes, who is empowered to bring criminal charges against those who violate the manual, didn’t have a chance to present all their evidence against the specific allegations.

Arrowsmith also said the judge’s order earlier this month is overly broad, even voiding some restrictions that were never specifically challenged in the lawsuit she ruled on, brought by the Arizona Free Enterprise Club.

And, if nothing else, he said it was wrong of the judge to issue an order changing procedures this close to the Nov. 5 general election.

“The order will cause judicially created confusion,” Arrowsmith wrote.

He said local officials have relied for weeks on the manual to train workers at polling places, most of whom are not professionals. That is reason enough for Ryan-Touhill to delay her order, he wrote.

The assistant attorney general acknowledged that the judge already rejected some of the theories he presented about why she should have dismissed the case in the first place. And the Free Enterprise Club will oppose undoing or delaying the order, said its executive director, Scot Mussi.

But Arrowsmith told Ryan-Touhill there are still some things she should reconsider.

Central to the issue is the role of the Elections Procedures Manual.

State law already includes clear provisions of what is and is not legal in and around polling places.

So, for example, it is forbidden to do “electioneering” within 75 feet. Also forbidden in statute is threatening someone to vote a certain way or using force, fraud or duress to keep someone from casting a ballot.

The Elections Procedures Manual is supposed to provide guidance for election officials. Some of that is strictly technical, and some simply repeats what the law already says.

But provisions in the manual seeking to define and provide examples of unacceptable conduct were challenged by two groups with ties to Republican interests: the Arizona Free Enterprise Club and the America First Policy Institute.

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Ryan-Touhill, in barring enforcement for the upcoming election, said challengers made some valid points, calling some of the restrictions “greater than necessary, vague, overbroad,” and saying they serve “as a universal prohibition on conduct.”

Consider the provision about electioneering within 75 feet of a polling place. That is defined in the manual as someone who “knowingly, intentionally, and verbally expresses support for, or opposition to, a candidate or ballot measure” in a way designed to induce someone to vote a given way.

However, the manual also would bar such activity outside that limit if it can be heard from inside the polling place, something the judge found overbroad.

Then there’s a restriction against “harassment” of a voter.

The judge said state law prohibits things like using or threatening force or violence to influence a vote.

But “nowhere in (the election law) is the word ‘harassment’ used,” Ryan-Touhill wrote.

Ryan-Touhill said the manual says prohibited harassment can include any unspecified “disruptive” behavior, unspecified “aggressive” behavior, raising one’s voice, as well as insulting or offensive language. Vagueness aside, she said the manual requires election officials to interpret whether an offense has occurred — not through any objective standard but through the eyes of someone else.

“A person could wear a T-shirt to vote that another voter or poll worker finds ‘offensive,’ “ the judge wrote.

That could result in a call to police, she said. Even if the person isn’t arrested, the manual allows them to be ejected from the polling place, a move that could disenfranchise them, the judge noted.

“Many of the provisions listed in the Elections Procedures Manual are free speech and protected by both the Arizona Constitution and the U.S. Constitution,” Ryan-Touhill wrote.

But the manual, once adopted, has the force of state law. And that means those in violation can be prosecuted by Mayes who, with the order, is subject to the judge’s restrictions on enforcing the provisions Ryan-Touhill found troubling.

The judge has not said when she will consider the issue.