By Howard Fischer
Capitol Media Services
PHOENIX -- Saying its too late to comply now, Secretary of State Adrian Fontes wants a judge to delay her order immediately blocking election officials from enforcing some rules about what people can do in and around polling places.
In new legal filings, Assistant Attorney General Nathan Arrowsmith contends that Maricopa County Superior Court Judge Jennifer Ryan-Touhill got it wrong when she concluded earlier this month that some provisions of the Elections Procedures Manual likely violate state and federal constitutional provisions. He argued that his office, representing Fontes and Attorney General Kris Mayes who is empowered to bring criminal charges against those who violate what's in the manual, really never had a chance to present all the evidence it has to defend against the specific allegations.
Arrowsmith also said that the judge's order is overly broad, even voiding some restrictions that were never specifically challenged by the Free Enterprise Club.
And, if nothing else, he told Ryan-Touhill that it was wrong of her to issue an order changing procedures this close to the Nov. 5 general election.
"The order will cause judicially created confusion,'' Arrowsmith wrote.
He said local officials have relied for weeks on what is in the manual to train workers at polling places, most of whom are not professionals. If only for that reason alone, Arrowsmith said, Ryan-Touhill should delay her order.
How much luck Fontes will have in getting a delay is unclear.
Arrowsmith acknowledged that the judge already has rejected some of the theories he presented about why she should have dismissed the case in the first place. And Scot Mussi, executive director of the Free Enterprise Club, said it will oppose undoing or delaying the order.
But he told Ryan-Touhill there are still some things she should reconsider.
Central to the issue is the role of the Elections Procedures Manual.
State law already includes clear provisions of what is and is not legal in and around polling places.
So, for example, it is forbidden to do "electioneering'' within 75 feet. Also forbidden in statute is threatening someone to vote a certain way or using force, fraud or duress to keep someone from casting a ballot.
What the Elections Procedures Manual is supposed to do is provide guidance for election officials.
Some of that is strictly technical. And some of that simply repeats what already is in statute.
But it is the provisions in the manual seeking to define and provide examples of what conduct is unacceptable that were challenged by two groups with ties to Republican interests: the Arizona Free Enterprise Club and the America First Policy Institute. And Ryan-Touhill, in barring enforcement of them for the upcoming election, said challengers made some valid points, calling some of the restrictions "greater than necessary, vague, overbroad,'' and saying they serve "as a universal prohibition on conduct.''
Consider that provision about electioneering within 75 feet of a polling place. That is defined in the manual as someone who "knowingly, intentionally, and verbally expresses support for, or opposition to, a candidate or ballot measure'' in a way designed to induce someone to vote a given way.
The manual, however, also would bar such activity outside that limit if it can be heard from inside the polling place, something the judge found overbroad.
Then there's a restriction against "harassment'' of a voter.
The judge said said state law does prohibit things like using or threatening force or violence to influence a vote.
"Nowhere in (the election law) is the word 'harassment' used,'' Ryan-Touhill wrote.
It's even more problematic, she said.
Ryan-Touhill said the manual says prohibited harassment can include any unspecified "disruptive'' behavior, unspecified "aggressive'' behavior, raising one's voice, as well as insulting or offensive language. Vagueness aside, she said that here, too, the manual requires election officials to interpret whether an offense has occurred -- not through any objective standard but through the eyes of someone else.
"A person could wear a T-shirt to vote that another voter or poll workers finds 'offensive,' '' the judge wrote.
That, she said, could result in a call to police. And even if the person isn't arrested, the manual allows that person to be ejected from the polling place, a move the judge noted could result in disenfranchisement.
"Many of the provisions listed in the Elections Procedures Manual are free speech and protected by both the Arizona Constitution and the U.S. Constitution,'' Ryan-Touhill wrote.
What makes all of that important is that the manual, once adopted, has the force of state law. And that means those who are in violation can be prosecuted by Mayes who, with the order, is subject to the judge's restrictions on enforcing the provisions Ryan-Touhill found troubling.
The problem with all that Arrowsmith said in his new request to the judge, is that even if there is merit to some of her points, her ruling is overbroad.
He pointed out that Ryan-Touhill barred enforcement of an entire chapter of the manual -- even including provisions never challenged.
"Any injunction therefore should have been limited to the challenged portions (of the Elections Procedures Manual) and should have described in reasonable detail the acts restrained,'' Arrowsmith said.
The judge has not said when she will consider the issue.
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