Judge questions if Arizona's election rules chill free speech rights

PHOENIX — A judge said Monday she finds “troubling’’ some rules the secretary of state enacted. She said they could lead to people being charged with crimes for exercising their First Amendment rights on Election Day.

The wording of the Elections Procedures Manual could be read to make it illegal for someone to wear a T-shirt criticizing one of the candidates on the ballot into a polling place, said Maricopa County Superior Court Judge Jennifer Ryan-Touhill.

She said she’s also concerned about prohibitions in the manual against harassment and intimidation.

Assistant Attorney General Josh Whitaker told the judge there is no basis for those concerns.

He said the manual is designed to be “guidance’’ for election workers, with no basis to apply its provisions to the general public. He also said the manual does not, and cannot, expand the laws approved by the Legislature.

The judge was not convinced.

“The problem is that the words that were chosen ... have very specific meanings and consequences in a legal sense,’’ Ryan-Touhill said. The words appear to have the provisions apply to all, she said.

She also noted that the manual has the force of law, with violations carrying sentences of four months in jail and a $750 fine.

The manual appears to criminalize certain behaviors, complete with examples, such as raising one’s voice, the judge said.

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.’’

And then there’s the broad category of “voter intimidation or harassment.’’

The judge said all that appears to go beyond what the law, as enacted by the Legislature, prohibits.

“It goes too far,’’ Ryan-Touhill told Whitaker. “It is about the freedom of speech. That’s what’s troubling here.’’

Whitaker said there is no evidence any individual who is not an election worker ever has been charged with a crime for violating it. And he pointed out there has been a manual since 1973, though provisions are changed regularly.

That did not appear to quell the judge’s concerns.

She said even if no one other than an election worker could be charged with a crime — which remains unclear — there are other implications. Consider, the judge said, someone who violates one of these rules being ejected from a polling place and disenfranchised.

Any ruling is unlikely to come before Tuesday’s primary. But whatever the judge decides could have an impact on the November general election, although it’s ultimately likely to go to the Arizona Supreme Court.

The case was brought by two groups largely aligned with Republican interests: the Arizona Free Enterprise Club, which has fought to tighten election laws; and America First Policy Institute, which was formed in 2021 by allies of Donald Trump to support free market and other policies of the former president.

Named as defendants are Secretary of State Adrian Fontes and Attorney General Kris Mayes, both Democrats.

Attorney Andrew Gould, who is representing the challengers, said the plain language of the manual that was written by Fontes and approved by Mayes shows the restrictions are overly broad and have the potential to chill the free speech rights of voters.

Consider, he said, the prohibition against “insulting language.’’

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“My goodness, your honor, I’d like to know what the definition of insulting language is,’’ Gould said. “And if the First Amendment doesn’t protect insulting language, I don’t know what it protects.’’

He said even the U.S. Supreme Court has said a prohibition on insulting language is “viewpoint discrimination,’’ which, by its nature, is protected.

“It’s the essence of political speech,’’ Gould said.

The judge focused in on how that would affect the ability of someone to wear certain clothing to a polling place.

Seeking to keep the discussion neutral, Ryan-Touhill asked what would happen if someone wore a T-shirt saying “Mickey Mouse sucks’’ — assuming Mickey were a candidate — and that “people choosing to vote for him should die.’’ Based on what’s in the manual, she said, wearing that shirt would be prohibited.

Then what? she asked.

The judge questioned whether an election worker would have the right to ask the voter to turn the shirt inside out. And if the person refused, Ryan-Touhill said, that could result in the voter being thrown out of the polling place, disenfranchising that person of their right to vote.

“It’s a slippery slope,’’ the judge said.

Whitcomb said the language in the manual is more in the form of guidance for election workers, comparing it to the kind of warnings posted in airports about what to report to authorities, such as unattended luggage and people asking unusual questions. The judge wasn’t buying it.

“I don’t think that helps your position at all,’’ Ryan-Touhill said, saying there’s a vast difference between the hazards of air travel in the post 9/11 age and restrictions on what can occur at a polling place where people are exercising basic constitutional rights.

Gould said the problems with the language extend beyond vote centers.

For example, he said there’s nothing that limits the scope of prohibited actions to polling centers, or even the legally defined 75-foot limit in which election activity is prohibited.

“It is everywhere,’’ he told the judge of the conduct restricted by the manual. Gould also argued that, as worded, the prohibitions against certain conduct are not limited to what can occur on Election Day.

Whitaker told Ryan-Touhill that, if nothing else, the lawsuit is flawed and she should throw it out. He said it lacks a threat of harm, which is needed to provide legal standing to sue to try to block enforcement of a law.

Gould cited a deposition from Philip Townsend, a Yuma Republican who said he is active in politics. Townsend said that, having read the rules, he is self-censoring, toning down what he says in conversations with others for fear of running afoul of the manual and the possible criminal charges.

“Subjective fear, even in the First Amendment context, is not enough,’’ Whitaker told the judge.

“The mere fact that you have a subjective chill, that you are afraid of being prosecuted, you still need something objective,’’ he said. “You can’t just declare, ‘I am afraid of something, therefore I have standing to sue in court.’ ‘’

Whitaker said if criminal charges actually were threatened against someone for violating the provisions of the manual, then someone could file suit.

He also had one more legal theory about why Ryan-Touhill should throw out the case.

Whitaker said it would be one thing if what’s in the manual was clearly unconstitutional. But he told the judge that if there is a way to interpret the provisions as constitutional, she has an obligation to err on that side.