Fontes says ruling on Elections Procedures Manual is 'an unfortunate decision'

A judge has rebuffed a bid by Arizona Secretary of State Adrian Fontes to delay her order immediately blocking rules he adopted about what people can do in and around polling places.

In a new order, Maricopa County Superior Court Judge Jennifer Ryan-Touhill rejected Fontes' claim that what he put into the new Elections Procedures Manual was not an effort to restrict conduct or First Amendment rights but instead meant only as "instructions and guidance for election officials.''

That, she said, is not the case, calling the provisions "an overreach by the secretary of state that restricted free speech.''

And Ryan-Touhill said nothing in her ruling interferes with the ability of police to enforce actual statutes, adopted by lawmakers, governing what is and is not legal.

She also rejected Fontes' contention that changing the rules so close to the Nov. 5 election — rules that have been used to train election workers — would cause chaos.

"It's an unfortunate decision," Fontes said in a prepared statement. "But election officials have been working around the clock to ensure these elections are secure, accurate and safe.''

And there's an option, he said, for anyone who is concerned about what might be happening in and around polling places: People are able to request an early ballot and drop it in the mail until Oct. 24 to be sure it arrives by Election Day.

Scot Mussi, president of the Free Enterprise Club which challenged the rules, praised the ruling.

"It's outrageous that Adrian Fontes tried to go to court to delay our constitutional rights being in place through the election,'' he said.

At the heart of the legal fight is a question of exactly what the Elections Procedures Manual is — and how its provisions can be enforced.

State law already provides the broad strokes. So, for example, it's illegal to doing electioneering within 75 feet of a poll, things like giving out literature or carrying signs.

All that is repeated in the manual, which Fontes has described as "guidance'' for election officials.

What Mussi's organization charged in its lawsuit is that many other items go beyond that guidance -- criminalizing conduct that is not restricted in the state Election Code prohibits.

So, for example, there's the question of what is acceptable outside that 75-foot limit.

The manual bars electioneering there if it can be heard from inside the polling place, something the judge found overbroad.

Then there's the issue of what clothing is acceptable by those when they cast a ballot. Mussi said his organization's position — affirmed by the judge — is that people can wear whatever they want, even if it promotes a candidate or urges support or opposition for a ballot measure.

"You have a First Amendment right to wear a T-shirt like that,'' he said. But he said the way the manual was worded was so broadly worded as to capture and criminalize legal, First Amendment rights.

Much of what is in the manual is designed to prohibit harassment.

Only thing is, there is nothing in state election law that makes that a crime. Yet the manual says it can include any unspecified "disruptive'' behavior, unspecified "aggressive'' behavior, raising one's voice, as well as insulting or offensive language.

What also is problematic, she said, is that the manual requires election officials to interpret whether an offense has occurred — not through any objective standard but through the eyes of someone else.

That goes back to issues like what someone is wearing.

Consider, Mussi said, if someone shows up at a polling place wearing a shirt that says "conservatives stink like pigs.''

"If somebody found that offensive, under the language Fontes drafted in the Elections Procedures Manual, you could be removed from the polling place and prosecuted,'' he said. "And that was the crux of the issue here.''

The same problem existed, Mussi said, if someone raised his or her voice and a poll worker decided that was "aggressive'' behavior.

Ryan-Touhill said the problem was even more complex than a poll worker calling the police. She even if the person isn't arrested, the manual would allow him or her to be ejected from the polling place, a move the judge noted could result in disenfranchisement.

Fontes had something else working against him.

In general, when a court weighs whether to enjoin a rule or law, one of the things it considers is the balance of hardships that a ruling will impose on one side or the other. In this case, Ryan-Touhill said Fontes and Attorney General Kris Mayes, who also was sued, failed to show how they would be harmed if they cannot enforce the rules in the manual.

But she said the reverse is true if she were to allow the rules to be enforced.

"It is always in the public interest to prevent the violation of a party's constitutional rights,'' the judge said.

Strictly speaking, this isn't the end of the matter. Even though Ryan-Touhill enjoined enforcing provisions in the manual, Fontes still retains the opportunity to argue, at a full-blown trial, that the restrictions are both constitutional and necessary.

But that won't occur before the November election.