Pima County Republicans sue state over electioneering rule ahead of midterms

A challenge to election rules by the Pima County Republican Party could open the door to people standing 75 feet from polling places being able to shout at voters about how they should cast their ballots — and even use bullhorns and amplifiers.

State Elections Director Lisa Marra testified in federal court Wednesday that statutes prohibit "electioneering'' within 75 feet of polling places, and she acknowledged state law is silent about activity beyond that point.

But the state Elections Procedures Manual says that electioneering is forbidden beyond that 75-foot limit "if it is audible from a location inside the door to the voting location.''

Attorney Jeffrey Clark, who represents the county party that sued, says that makes illegal the decision of Secretary of State Adrian Fontes to include the ban on some activity outside that 75-foot perimeter. He said the secretary cannot enact restrictions more strict than what the Legislature has put into the law. Anyway, he said, any rule that restricts anything outside that line violates the First Amendment.

It is now up to U.S. District Court Judge Michael Liburdi to decide whether the provision in the manual is legal and enforceable.

It isn't just the ban on the ability of people to shout at would-be voters that the Pima Republicans want the judge to void.

Challengers also contend that language in the manual allows election workers to turn away those who show up, often armed, in police or military uniforms.

Marra said that's not a blanket ban.

She used to be elections director in Cochise County where there is a military base and Border Patrol offices. And she said in her experience, no one who comes to a polling place in uniform has ever been denied the right to vote. The issue the rule is designed to address, Marra told the judge, is people who come to polling places in uniforms, whether real or fake, with the intent to intimidate.

But Clark is arguing even that restriction isn't something within the authority of Fontes to prohibit.

What makes all of this a federal case, literally, is that under Arizona law, violations of the Elections Procedures Manual are a crime. And that, according to attorneys for the party, entitles them to challenge – and for Liburdi to invalidate – any provision in the manual that lacks specific statutory authority.

Perhaps the most sweeping – and the one that could have major impacts around polling places – is the question of noise.

Marra acknowledged that the only thing stated clearly in Arizona law is that electioneering is prohibited not just inside polling places but also within 75 feet.

That is defined as the knowing and intentional verbal expression of support for or opposition to a candidate or ballot measure "to induce or compel another person to vote in a particular manner or refrain from voting.''

Generally speaking, that doesn't apply outside the limit. So it's not unusual to find candidates and political supporters beyond the limit approaching voters, handing out materials and even displaying signs of support or opposition.

But what Fontes has done is put language into the manual to say that bright-line exemption does not apply when someone outside the perimeter acts to intentionally reach those inside the line – particularly those already inside the building where they are considering their choices and marking their ballots. Clark grilled Marra on exactly what entitles Fontes to do that.

"I would compare voting locations somewhat to a library,'' she responded, albeit "not quite as quiet.''

But Marra said there's a legitimate reason to keep folks with bullhorns just outside the 75-foot perimeter from interrupting.

"People need to be able to concentrate,'' she said of voters considering their options.

"Election officials need to be able to talk among themselves,'' Marra continued. "They need to be able to hear the voters. The voters need to hear them, have clear instructions.''

Nor does the challenged rule require that whoever is making the noise be using an amplifier. She acknowledged that the same prohibition could apply to someone who just happens to have a booming voice that could be heard inside the polling place.

But whether any of that violates the rules, Marra said, depends on context.

"Is there intention actually electioneering?'' she responded to Clark's questions. "Maybe they're just singing loudly. I don't know.''

Clark, however, pointed to a statute that says that with minor exceptions, "electioneering and other political activity shall be allowed outside of the 75-foot limit.'' And he said that measure, having been approved by lawmakers, trumps Fontes' ability to create his own exception to that.

"Doesn't your audibility requirement invade the right that's created in this provision to allow people to electioneer 75 feet plus?'' he asked.

"I don't think so, because, again, the intent is, can it be heard inside the polling location,'' Marra responded.

And she said that "intent'' was that of Fontes who consulted with other election officials who helped craft the manual, as well as the governor and attorney general who also have to give their approval.

"So not the intent of the Legislature?'' Clark responded, with Marra conceding the point.

But Assistant Attorney General Karen Hartman-Tellez argued that Liburdi does have to look at the intent of lawmakers who imposed that 75-foot limit.

She said it is designed to prevent people from interfering with voters who are in a polling place.

And Hartman-Tellez said that means it's not just the physical location of the person doing the electioneering that's a factor – even beyond that perimeter – but also whether it can interfere with someone inside trying to cast a ballot.

It's no different, she said, than a phone call from Phoenix to Tucson, with the communication taking place not just at the originating location but also where the intended recipient is present.

The claim by the Pima Republicans goes beyond whether Fontes exceeded his legal authority.

Clark told the judge that what also is at issue are the First Amendment rights of those wanting to electioneer outside that 75-foot limit.

Part of what makes this case – and that First Amendment claim – interesting is the fact that it is being heard by Liburdi.

In 2022, the judge issued an order blocking members of Clean Elections USA, organized to get people to monitor drop boxes in Arizona, from coming within 250 feet of the boxes if they are openly armed or dressed in body armor.

It also barred group members from taking pictures of people dropping their ballots into the boxes, even if they remain 75 feet away. Group members were posting these online and saying those pictured were depositing more than one ballot.

There is no Arizona law imposing such restrictions. And Liburdi, in issuing a temporary restraining order, acknowledged 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,'' the judge said, saying there was evidence that was happening.

Hartman-Tellez, who reminded Liburdi of his 2022 ruling, sought to emphasize that balance Wednesday in urging Liburdi to reject the challenge to the rule extending that ban on electioneering beyond the 75-foot limit in statute.

"We have competing First Amendment rights,'' she said, with the right to vote also protected by the U.S. Constitution.

And Hartman-Tellez said that courts, in ruling about what is and is not allowed around polling places, have concluded "that the regulations need only be reasonable.''

Liburdi did not say when he would rule.