PHOENIXย โ Calling what Secretary of State Adrian Fontes proposed "utterly without precedent'' and comparing it to a nuclear weapon, a federal judge blocked him from refusing to include a county's vote in the statewide totals if local supervisors fail to certify the election's results.
In the ruling late Friday, U.S. District Court Judge Michael Liburdi acknowledged there was at least one attempt in the past by a board of supervisors to delay certification. That action threatened to hold up the formal canvass of all the votes throughout the state and to change the outcomes of some races.
But Liburdi said the solution Fontes incorporated in Arizona's Elections Procedures Manualย โ allowing him to skip over uncertified votes simply to finalize the state resultsย โ would unfairly and illegally disenfranchise the voters who had cast their ballots.
"If the right to vote is the right of qualified voters within a state to cast their ballots and have them counted, then the canvass provision imposes the most severe burden: state-sanctioned disenfranchisement,'' the judge wrote.
Consider, Liburdi said, what would happen if supervisors balked in Maricopa County, the state's most populous, where 2.4 million people vote.ย
Under the rules Fontes, an elected Democrat, enacted in the manual, he would be permitted to certify the state results without including those votes โ meaning the results would be determined by votes only from the other 14 counties.
What's worse, Liburdi said, is that none of this would be the fault of the disenfranchised voters.
Arizona Secretary of State Adrian Fontesย
"A registered voter in Arizona may perfectly comply with all voting requirements and obligations but nonetheless have her vote excluded based on the mal- or nonfeasance of public officials,'' he wrote.
Nor was Liburdi convinced by assurances from Fontes that the provision was meant largely to spur county supervisors to comply with the law and likely would never be enforced.
"A nuclear weapon does not become any less dangerous simply because a world leader avows never to unleash it,'' the judge wrote. He said the same is true of claims by Fontes never to follow through.
"The canvass provision imposes a nuclear-level burden on voting rights,'' Liburdi said. "It is a weapon in the secretary's arsenal that he has discretionย to use should the circumstances present themselvesย โ a weapon that does not become any less threatening simply because the secretary is self-professedly 'committed' to not pulling the trigger.''
Speech in polling placesย ย
Strictly speaking, Liburdi's order does not void the provision of the manual. That would take a full-blown trial. But it does preclude Fontes from enforcing or relying on that provision this year.
The challengers in the lawsuit, two groups with ties to Republican interests, also convinced Liburdi to bar Fontes from enforcing another provision dealing with speech and actions permitted in and around voting locations.
That language would have prohibited "any activity by a person with the intent or effect of threatening, harassing, intimidating, or coercing votersย โฆ inside or outside the 75-foot limit at a voting location.''
Liburdi said there's no problem in general with barring intentional threats, intimidation or coercion. The issue, he said, turns on the fact the wording also covers actions that have the effect of doing so, regardless of the intent of the person.
He also noted that, as written, the manual governs actions beyond the 75-foot perimeter in which certain activities are forbidden by statute, such as campaigning or taking pictures.
"Thus, speech that a listener finds too loud, too offensive or too insolentย โ potentially anywhere in Arizonaย โ is prohibited,'' Liburdi wrote. "But it has long been established that speech may not be prohibited because it concerns subjects offending our sensibilities.''
And then there's the fact that the prohibition would be based solely on the reaction of the listener.
"Plaintiffs do not have fair notice of what speech is prohibited,'' Liburdi wrote. The provision could be enforced by a poll worker who would have the ability to eject someone from a polling place, even before they cast their ballot, he said.
"Moreover, the rule prohibits 'offensive' or 'insulting' speech without defining what categories of speech rise to the requisite level of offense or insult,'' he continued. "Without any limitation, election officials and poll workers have nearly unfettered discretion in categorizing and regulating a voter's speech.''
That increases the likelihood the provision would be arbitrarily enforced, said Liburdi.
Cochise County case
In some ways, this part of the order is not a surprise.
Maricopa County Superior Court Judge Jennifer Ryan-Touhill issued her own order last month barring Fontes from enforcing what she said were restrictions on free speech covering everything from what people can wear to the polls to a prohibition on anything that has the effect of harassing a voter. She said the provisions in the Elections Procedures Manual "are greater than necessary, vague, overbroad, and serves as a universal prohibition on conduct.''
But it is the part of the ruling overriding Fontes' authority to complete the statewide canvass without all the votes that could have more far-reaching implications.
The issue is not academic.
In 2022, Cochise County supervisors balked at doing the local canvass, with the two Republicans on the three-member board saying they had unanswered questions. It took a court order to get that canvass done, freeing up Democrat Katie Hobbs, then the secretary of state, to certify the results of the election.
Hobbs was elected governor in that election and Fontes was elected secretary of state. The results of neither of those races would have changed with or without the 47,284 Cochise votes.
But if the final canvass was without those votes, the outcomes of two races would have changed: Republican Tom Horne would have lost the race for state schools chief to Democratic incumbent Kathy Hoffman, and Democrat Kirsten Engel would have defeated Republican Juan Ciscomani for the Congressional District 6 seat.
Liburdi, in the new ruling, noted it never came to that with one of the Republican supervisors on the county board, Peggy Judd, under a court order, finally agreeing to vote with Democrat Ann English to certify the resultsย โ and make Horne and Ciscomani the winners of their races in Cochise.
Another remedy, said Liburdi, would be filing criminal charges against errant board members. That occurred against Judd and Republican Supervisor Tom Crosby, albeit after the election was certified. They are now awaiting trial on felony charges of election interference.
The judge said there are other options, as well, such as seeking a declaration from a judge as to the correct vote counts, or appointing an auditor or special master to certify vote totals if a county fails to do so.
"Under any of these alternatives, the state would achieve finality in election results by the statutory deadline, and in a manner that ensures allย ย voters are enfranchised,'' Liburdi wrote.
Fontes' response
Fontes press aide Aaron Thacker said the office "will do a deeper dive on the decision and determine what we will do next if we need to do anything at all.''
The lawsuit was brought by American Encore, 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.
Also filing suit was America First Policy Institute. It was formed in 2021 by allies of Donald Trump in the wake of his 2020 loss in the presidential race to support free market and Trump policies.
