Judge blocks enforcement of some rules on voter behavior at Arizona polling places

PHOENIX — A judge has blocked Arizona Secretary of State Adrian Fontes from enforcing rules about what people can do in and around polling places.

In a new ruling made available Tuesday, Maricopa County Superior Court Judge Jennifer Ryan-Touhill said the restrictions on everything from what people can wear to the polls to a prohibition on anything that has the effect of harassing a voter likely violate state and federal constitutional provisions protecting free speech. She said the provisions in the state’s Elections Procedures Manual “are greater than necessary, vague, overbroad and serves as a universal prohibition on conduct.”

The injunction against enforcing those rules at the upcoming general election is not the last word. It still gives Fontes a chance to argue at a full trial that the restrictions are both constitutional and necessary.

But the chances of the judge changing her mind appear slim, as her 34-page decision cited specific problems with each of the provisions she finds “problematic.”

Fontes said he plans to seek immediate appellate relief from having to change what’s in the manual between now and the Nov. 5 general election.

“Americans know that not all speech is protected, especially when threatening or violent speech is used,” he said. “While we respect the court’s decision to halt certain speech restrictions, implementing a preliminary injunction for the general election would be too far-reaching.”

At issue is the Elections Procedures Manual which is supposed to function as a guide for county officials. It is designed to help them interpret what Arizona election laws enacted by the Legislature require and prohibit.

The problem with what is in the manual, said Ryan-Touhill, is that the restrictions both exceed what lawmakers say is prohibited in Arizona election law and infringe on free speech.

For example, state law does prohibit 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.

The manual, however, bars 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.

She said state law does prohibit things like using or threatening force or violence to influence a vote.

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

There is a general state law in the Criminal Code that makes harassment a crime.

But the problem here, she said, is that the manual says that activity in election situations is illegal, not just if the person intends to harass someone else — the requirement for arrest under the general state law — but it if has the “effect” of harassment. And that, the judge said, goes beyond what is allowed in Arizona statutes.

It’s even more problematic, she said.

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 that here, too, 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 workers finds ‘offensive,’” the judge wrote.

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

“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.

More to the point, the judge said some of the things the manual seeks to prohibit are nebulous.

“What, for example, constitutes a person communicating about voter fraud in a harassing manner?” she asked, something forbidden in the manual. Ditto, the judge said, of the ban on “posting signs or communicating messages about penalties for voter fraud in a harassing or intimidating manner.”

“And what content printed on a T-shirt might be offensive to one and not another?” the judge continued. “What if the T-shirt says, ‘I have a bomb and I intend to vote.’? Where does the secretary draw the line?”

Attorneys for Fontes and the Attorney General’s Office tried to keep the case from getting this far. They had asked the judge to dismiss the case outright, arguing the challengers — the Arizona Free Enterprise Club and the America First Policy Institute — lack standing to sue because there was no evidence that they had been threatened with prosecution.

Ryan-Touhill did note that Scot Mussi, president of the Free Enterprise Club which has been actively involved in Arizona politics, usually on behalf of Republican issues, admitted he does not know of anyone arrested, prosecuted or even threatened with prosecution for handing out flyers or any other violation of the manual.

But the judge said that doesn’t mean their claims are legally invalid.

“Plaintiffs are not required to be injured before the court may address the claims,” she wrote.

In this case, the judge said, the challengers alleged they fear prosecution if they violate the free speech restrictions. She cited, for example, testimony from Philip Townsend, a Yuma Republican, who said he has “self-censored” out of fear of running afoul of the manual.

The new ruling is not a total victory for the challengers.

Ryan-Touhill rejected their claims that a provision in the manual allowing election officials to send early ballots to a temporary out-of-state address is illegal. They had argued that created distrust in the election system by causing Arizonans to believe that nonresidents were affecting the outcome.

The judge, however, said only those registered to vote in Arizona are entitled to early ballots.

She said there is no difference between someone wanting an early ballot sent to a vacation home in Flagstaff versus a vacation home in Salt Lake City. And the result of what the challengers sought, Ryan-Touhill said, could disenfranchise otherwise legal voters.

The judge also dismissed challenges to what the manual says election officials are required to do when signatures on early ballots are inconsistent.

And Ryan-Touhill refused to immediately enjoin some other practices, like procedures for registering those who circulate petitions, saying she needs to hear more evidence.