Two groups with ties to Republican interests are charging that new election rules adopted by Secretary of State Adrian Fontes interfere with free speech and potentially could disenfranchise some Arizona voters.
The lawsuit filed in federal court by American Encore and the America First Policy Institute claims rules Fontes put into the Elections Procedures Manual about harassment of voters and election officials are so broad and so nebulous that they could criminalize otherwise legal conduct. And that could lead to four months in jail and a $750 fine.
But that's just part of what former Supreme Court Justice Andrew Gould, representing the two groups, claims is a problem.
He said the manual allows election results to be certified even if one or more counties refuses to certify its own results— something that nearly happened in 2022.
That’s when Cochise County supervisors balked at doing the canvass, with the two Republicans on the three-member board saying they had questions. It took a court order to get the canvass done.
But Gould said rather than requiring the secretary of state to force the issue — like what happened in 2022 — the manual says he can simply finalize the results and declare winners without counting that county’s votes.
Now the groups want U.S. District Judge Michael Liburdi to block the Democratic secretary of state from enforcing it.
A spokesman for Fontes said he has no comment.
At the heart of the fight is the Elections Procedures Manual. Required by state law, it is designed to provide more specific instructions and guidance than the Elections Code, a set of statutes, adopted by the Legislature.
It is crafted by the secretary of state but also must be approved by the governor and the attorney general.
Gould said what Fontes put into the manual goes beyond what is allowed under state law.
He also takes specific aim at a provision that prohibits “any activity by a person with the intent or effect of threatening, harassing, intimidating or coercing voters.”
Gould acknowledges that the state law does make it a crime to use force or violence, threatening to inflict injury, intimidation or fraud against voters. But he said that the rules Fontes adopted in the manual lack any requirement that these actions actually be related to voting.
For example, Gould says the manual lists various things that may be considered intimidating conduct inside or outside a polling place, including aggressive behavior like raising one's voice or taunting a poll worker.
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.''
Only thing is, Gould says, is that any ban on "insulting or offensive speech'' is an unlawful content and viewpoint-based restriction and violates First Amendment rights.
"Giving offense is a viewpoint,'' wrote Gould, who also was an unsuccessful Republican 2022 candidate for attorney general.
What also makes the provision illegal, he said, is that open-ended terms like "insulting or offensive language'' do not provide sufficient guidance to inform members of the public of what is permitted and what would result in the criminal penalties that exist for violating provisions in the manual.
"For example, would wearing a MAGA hat, an 'All Lives Matter' button or an 'I Support the Second Amendment' T-shirt constitute 'offensive speech' or be considered 'harassing' to a voter that sees them?'' Gould asked. Laws can be voided as illegally vague if they fail to tell a reasonable person what is and is not illegal.
No date has been set for a hearing.
American Encore is an Arizona based group run by Sean Noble that bills itself as promoting free enterprise policies.
It also has funneled money into political campaigns in Arizona, including helping Doug Ducey win his first gubernatorial race in 2014. It also was fined by the Federal Elections Commission for concealing the source of funds used in campaigns in other states.
America First Policy Institute was formed in 2021 by allies of Donald Trump to support free market and other policies of the former president.
