PHOENIX — The Arizona Free Enterprise Club is asking a judge to void proposed rules that say its members have no right to photograph, approach, question and even seek “documentation” of voters who are using drop boxes.
Rules in the new Elections Procedures Manual about what can be restricted around the freestanding outdoor boxes where voters deposit their ballots violates the First Amendment rights of its members, attorneys for the group contend.
“These activities — watching drop boxes, speaking to people at election sites, and photographing activity at election sites — all constitute forms of speech,’’ the new lawsuit says. And it says members of the organization which lobbies for less government regulation and lower taxes, are interested in monitoring what goes on around drop boxes.
But that’s not all the lawyers say group members want.
“They are also just as interested in conveying a message to others that the drop boxes are being watched and should be watched,’’ the lawsuit says.
All that comes amid perennial claims, without proof, that “mules’’ have been stuffing drop boxes in Arizona with massive numbers of fake ballots or ballots that had been illegally “harvested’’ from other voters. That resulted in members of at least one group, some visibly armed, monitoring boxes and videotaping voters.
The situation got so bad that U.S. District Court Judge Michael Liburdi barred members of Clean Elections USA from gathering within 75 feet of the boxes, taking videos even if the people taking the pictures are outside that 75-foot perimeter, and mandating that anyone openly carrying a weapon or wearing body armor remain at least 250 feet from any drop box.
Liburdi said there is a First Amendment right of people to “gather on a public sidewalk and watch at a distance.
“But I do think balancing that right against the right of voters to exercise their vote without legitimate fear of intimidation or harassment is appropriate here,’’ he wrote.
That injunction, however, was issued against only that group which was conducting the surveillance. And it has since expired.
What has happened since is the publication of the newest version of the Elections Procedures Manual. It is meant as a guide for how county officials should interpret state election laws.
There already are some laws about what can and cannot occur within 75 feet of an actual polling place, including taking pictures and intimidating voters.
But Secretary of State Adrian Fontes, a Democrat, is advising election officials that certain activities outside that limit but around free-standing drop boxes also could constitute illegal “obstruction or harassment.’’ That includes hanging around within 75 feet to monitor those delivering ballots and, even outside that 75-foot limit, intentionally following people who are delivering their ballots.
That, the Free Enterprise Club contends, unconstitutionally interferes with their rights. And, if nothing else, they argue that his rules illegally go beyond what already is prohibited by the state Election Code.
But the lawsuit also takes aim at Fontes’ contention that other kinds of activity, both inside and outside polling places, could be considered illegally intimidating. These include taunting, or using threatening or offensive language to a voter or poll worker as well as directly confronting photographing or videotaping in a harassing or intimidating manner, including when they are coming or or leaving a polling location.
And challengers also question Fontes’ assertion that it could be illegal harassment to ask voters for documentation or other questions that only poll workers should perform.
All this, the lawsuit says, goes too far as there already are laws against voter intimidation.
The Free Enterprise Club has a long record of lobbying and litigation over election rules.
One pending lawsuit actually seeks a ruling that drop boxes are illegal and that voters who don’t want to mail back their early ballots actually have to bring them to an election office. There has been no ruling on that case.
The organization also has sought to block enforcement of Proposition 211, the 2022 voter-approved measure which requires full disclosure of the original source of all funds used to influence elections, arguing that making it reveal the names of the people who contribute to its efforts violates the rights of donors. A judge has rejected that contention.
It did, however, get courts to quash a bid to give Arizona voters the last work on $1.9 billion in tax cuts enacted by the Republican-controlled Legislature in 2021.
And it was at the forefront of successfully getting GOP lawmakers to impose new identification and proof-of-citizenship requirements on those registering to vote.
That actually goes to a separate lawsuit, also filed Friday, by the Republican Party against Fontes.
It is asking a judge to block the use of the new Elections Procedures Manual.
Attorneys for the national, state and Yavapai County Republican parties contend that the manual was enacted without providing the public sufficient opportunity to comment. That, says attorney Christopher Murray, violates legal requirements that govern any agency enacting rules.
But Murray also contends the new manual contains various provisions that run afoul of voter registration statutes approved by the Republican-controlled Legislature. These range from requirements on county recorders to check databases to see if registered voters are citizens, to allowing those without such proof to vote in presidential elections.
That last point has political implications.
The most recent figures show there are about 32,000 Arizonans who are what is known as “federal only’’ voters. These are individuals who have failed to provide proof of citizenship but, according to at least one judge’s ruling, are still allowed to vote in federal elections.
And what makes that number important this election year is that Donald Trump lost to Joe Biden in 2020 by 10,457 votes.
But there is no immediate data available about how many of these federal-only voters actually cast ballots in 2020 or in the races for U.S. Senate or House of Representatives two years later.
“This is a blatant attempt to rewrite election law and hollow out basic safeguards that are designed to preserve election integrity in our state’s election,’’ state GOP Chair Gina Swoboda said in a prepared statement.
Ronna McDaniel, who chairs the Republic National Committee, was even more blunt in a post on X, formerly Twitter.
“AZ Democrats want to make it easier for non-citizens to vote during a border crisis and get rid of basic election safeguards,’’ she wrote. “We’re going to court to stop them.’’
What the GOP lawsuit does not say is that a federal judge last year actually blocked the state from enforcing its 2022 law requiring proof of citizenship to vote for U.S. president.
Judge Susan Bolton did not question that Arizona is free to demand such proof to vote in state and local elections.
But she pointed out that the National Voter Registration Act requires the Election Assistance Commission to prepare a form that can be used to vote in federal elections. That form mandates only that applicants sign a sworn statement avowing, under penalty of perjury, they are in fact citizens.
And that, the judge said, trumps state laws as far as voting for federal offices.
“Binding precedent indicates that Congress has the power to control registration for presidential elections,’’ Bolton wrote.
Fontes said he is studying the lawsuits and had no immediate comment.
