Judge: Some Arizona Elections Procedures Manual rules are 'troubling'

A judge said Monday she finds "troubling'' some rules enacted by the Arizona secretary of state that she says could lead to people being charged with crimes for exercising their First Amendment rights on Election Day.

Maricopa County Superior Court Judge Jennifer Ryan-Touhill said the wording of the Elections Procedures Manual could be read to make it illegal for someone to wear a T-shirt into a polling place that criticized one of the candidates on the ballot. And she said she also is concerned about prohibitions in the manual against harassment and intimidation.

Assistant Attorney General Josh Whitaker told the judge there is no basis for her concerns.
He said the manual is designed to be "guidance'' for election workers, with no basis to apply its provisions to the general public. Anyway, he said, the manual does not -- and cannot -- expand the laws approved by the Legislature.

Ryan-Touhill was not convinced.

"The problem is that the words that were chosen ... have very specific meanings and consequences in a legal sense,'' she said, words she said that appear to have the provisions apply to all. Add to that, said the judge, is that the manual has the force of law, with violations carrying four months in jail and a $750 fine.

On top of that, she said, what the manual appears to criminalize are certain behaviors, complete with examples, like raising one's voice.

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.'' she said. "That's what's troubling here.''

Whitaker said there is no evidence that 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 -- something that remains unclear -- Ryan-Touhill said there are other implications. Consider, the judge said, someone who violates one of these rules being ejected from a polling place and being disenfranchised.
Any ruling is unlikely to come before Tuesday's primary. But whatever the judge decides -- and ultimately is likely to go to the Arizona Supreme Court -- could have impact at the November general election.

The case is being 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.