A judge has blocked rules written by the Arizona secretary of state that were designed to protect voters and election workers from intimidation and harassment.
In a lengthy ruling Monday, Maricopa County Superior Court Judge Jennifer Ryan-Touhill said certain rules included in Secretary of State Adrian Fontes’ Election Procedures Manual violate free speech protections in the Arizona Constitution.
The ruling is a significant victory for the Free Enterprise Club, the conservative group that filed the suit challenging key provisions in the EPM, a how-to guide for administering elections in accordance with state and federal law.
In court documents, an attorney for the group called the intimidation and harassment rules “breathtakingly broad” and “some of the most onerous restrictions on speech.”
In the 34-page ruling, Ryan-Touhill shared some of those concerns, and issued a preliminary injunction blocking enforcement of those restrictions.
“The EPM contains what this Court finds to be speech restrictions in violation of our Arizona Constitution, misstates or modifies our statutes, and fails to identify any distinction between guidance and legal mandates,” the judge wrote.
The ruling comes after years of contentious elections in Arizona that have seen activists inspired by false claims of widespread election fraud show up at ballot boxes, polling places and election offices with guns and make threatening statements.
The judge noted that Arizona has existing laws in place to prevent intimidation and harassment.
“These laws apply everywhere — a person cannot intimidate or threaten another voter, regardless of where the act occurs. Likewise, a person cannot harass another, regardless of where the act occurs,” Ryan-Touhill wrote.
But Ryan-Touhill pointed out 13 specific rules in the EPM, including bans on the use of insulting or offensive language, taunting or aggressive behavior towards poll workers and voters, that go beyond state law and could conflict with the constitution.
State law prohibits electioneering — actively promoting political campaigns — within 75 feet of voting locations. Only voters, election workers and observers from political parties and other approved entities are allowed within that boundary.
But the new EPM also includes a prohibition against electioneering outside of that 75 foot perimeter “if it is audible from a location inside the door to the voting location,” and also bans any activity inside or outside the boundary that has the “intent or effect of” harassment.
“The Court is unpersuaded by Defendants’ argument that the EPM does not restrict speech … The Court finds that in some instances this is exactly what the EPM does,” the judge wrote, in the order, which blocks the Secretary of State from enforcing those provisions.
The Secretary of State’s Office plans to appeal that ruling, spokesman Aaron Thacker said.
“Americans know that not all speech is protected, especially when threatening or violent speech is used,” Thacker said. “We plan to appeal these restrictions and other denied motions to dismiss to protect the security and accessibility of our elections.”
Thacker noted that Arizona laws like the 75-foot buffer zone at voting locations remain in effect.
“It is still illegal to electioneer, take photos, and intimidate voters within the 75 foot limit,” Thacker said. “The EPM is intended to ensure procedures are the same across the state, regardless of which county a voter resides. This maintains the integrity of our elections and ensures that all Arizonans can vote freely. While we respect the court's decision to halt certain speech restrictions, implementing a preliminary injunction for the general election would be too far-reaching.”
Ryan-Touhill also upheld several other parts of the manual that were challenged in the lawsuit, including a rule requiring election officials to allow early voters a chance to fix problems with the signatures on their early ballots and another provision allowing early voters – like college students – to make a one-time request that their ballot be mailed to an out-of-state address.
The Free Enterprise Club alleged that the process could allow bad actors to engage in election fraud.
“The Court also disagrees with Plaintiffs’ claims that these mail-in ballots may dilute legitimate votes,” the judge wrote.” The Court finds that argument nonsensical.”
Ryan-Touhill found the group presented no evidence that the rule has been exploited in the past or would affect existing requirements that county election officials verify early ballots came from eligible registered voters, whether that ballot was sent to a residence in Arizona or another state.
An attorney for the Arizona Free Enterprise Club did not respond to a request for comment.
