By Howard Fischer
Capitol Media Services
PHOENIX -- Secretary of State Adrian Fontes cannot enforce his ban offensive or insulting speech at and around polling places, the 9th Circuit Court of Appeals ruled Tuesday.
The court concluded that the provisions he included in the Elections Procedures manual are so broad that they could criminalize unintentional conduct.
Judge Kim Wardlaw, writing for the unanimous three-judge panel, also said the language would outlaw any activity that has the effect of harassing, intimidating or coercing voters, regardless of whether that was the intent. And the threat of prosecution, she said, could "chill'' individuals from engaging in otherwise legal political activity.
"Indeed, it is inherent in the very nature of political and electoral expressive conduct that plaintiffs may not know which political issues may become relevant or offensive the the polls,'' the judge wrote. "And it is inevitable that some political and election speech -- matters of public concern -- will have the effect of being offensive to someone.''
But the judges punted on a separate question of whether Fontes can give himself the power to finalize election returns and declare winners even if the results from one or more counties are missing because their supervisors refused to certify the results.
Wardlaw acknowledged such an action, were it ever to occur, could disenfranchise some Arizonans voters by leaving their votes out of the final tally. And that could change the results of some elections.
She said, though, the challengers never made a clear showing that a county actually would balk at finalizing results. And that, Wardlaw wrote, meant they have no standing to contest the provision.
Central to the lawsuit is the Elections Procedures Manual.
In essence, it operates as a supplement to state election laws, spelling out procedures and policies in more detail than the statutes enacted by the Legislature. It also has the force of law, with violators subject to criminal penalties.
What Fontes put in the manual would prohibit "any activity by a person with the intent or effect of threatening, harassing, intimidating, or coercing voters'' both inside 75-foot limit at voting locations, where certain activity like campaigning already is prohibited, as well as outside that perimeter.
He even included examples of what would be banned, such as raising one's voice or taunting a voter or poll worker, using threatening, insulting, or offensive language to voters or poll workers, and intentionally disseminating false or misleading information as voting locations, like flyers that misstate the date of the election, hours or operation or location of polling places.
That drew a challenge from American Encore, 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 Republican Doug Ducey win his first gubernatorial race in 2014.
Also filing suit was America First Policy Institute. It was formed in 2021 by allies of Donald Trump in the wake of his 2020 loss in the presidential race to support free market and Trump policies.
The challengers said they fear the provisions enacted by Fontes could be used to restrain what they say is their normal lawful election-related activity. That includes electioneering activities, training volunteers and poll watchers and advocating for certain government policies.
They also said that what Fontes seeks to declare illegal could extend to things like wearing an "All Live Matter'' hat, a shirt that says "Vote to Protect Unborn Children,'' and a hoody that reads "Israel has a right to exist'' or "Never forget October 7th.''
Wardlaw said an injunction against enforcement is appropriate given the vagueness of what the manual would and would not make someone subject to criminal penalties.
But that's not all. The judge said what Fontes wants to enforce goes beyond what is in state law.
That statute makes it illegal to "knowingly'' threaten or intimidate people to compel them to vote or refrain from voting for a particular candidate or ballot measure. By contrast, she said, what Fontes proposed in his rules would criminalize any conduct that has the "effect of threatening, harassing, intimidating or coercing voters.''
What's missing from that, the judge said, is a requirement that the person intends to do any of those things. Instead someone could be charged with breaking the law simply because the listener felt threatened or intimidated, even if there was no intent to do any of that.
Wardlaw also took exception to Fontes' use of the word "harassing,'' a term not defined in the manual. She said that may encompass "a broad range of activities that are viewed as insulting or offensive,'' activities that are protected by the First Amendment.
All that, the judge said, entitles challengers to an injunction because the threat of criminal prosecution for violating the provision could have a "chilling'' effect on the ability of people to say, do -- and even wear -- things, even outside of the 75-foot.
And it's not just the threat of criminal prosecution.
She said the language that Fontes inserted into the manual and the examples he gave were intended to be used by election officials to identify and "promptly remedy'' any conduct that could be viewed as voter intimidation.
"Plaintiffs may be dissuaded from engaging in their intended speech even if there is no threat of criminal prosecution because election officials may nonetheless report them to police or remove them form the polling location based on guidance provided by the Elections Procedure Manual,'' the judge wrote. And that threat, she said, is sufficient to create a risk of the provision being enforced against them, especially considering "the increasingly contentious elections our country has experienced over time.''
Tuesday's ruling is not the last word. All it does is uphold an injunction issued by a trial court judge barring Fontes from enforcing the law. But it still gives him a chance to argue at a full-blown trial that the restrictions are both legal and necessary.
Fontes said the case is about the public's right to "participate freely in the democratic process.''
"On one side is the voters' freedom to assemble, to engage, and to be heard without intimidation or interference,'' he said.
"On the other side is a claim to behavior that could trample those rights,'' Fontes continued. "As secretary of state, I will always stand on the side of protecting voters -- their voices, their rights, and the integrity of our elections.''
But attorney Andrew Gould who represented the challengers called it "a great victory for free speech.''
The problem with the language adopted by Fontes, he said, is it gave "too much discretion to government officials to criminalize and punish speech that they viewed as offensive or harassing.''
On the issue of canvassing election results, Gould said he was surprised that the appellate judges refused to curb the authority of the secretary of state to certify incomplete returns. He said this isn't an academic question, saying the court was aware of what happened three years ago in Cochise County.
There, supervisors balked at doing the local canvass, with the two Republicans on the three-member board saying they had unanswered questions. It took a court order to get that canvass done, freeing up Democrat Katie Hobbs, then the secretary of state, to certify the results of the election which declared her governor, with Fontes, also a Democrat, named secretary of state.
The results of neither of those races would have changed with or without the 47,284 Cochise votes.
But if the final canvass was had been conducted without those votes, Republican Ton Horne would have lost the race for state schools chief to Democratic incumbent Kathy Hoffman, and Democrat Kirsten Engel would have more votes than Republican Juan Ciscomani for the Congressional District 6 seat.
Gould also said there have since been other situations where county supervisors have indicated they might try the same thing.
But Wardlaw said none of this rises to the level where she and her colleagues need to get involved.
She pointed out there are other actions -- short of not counting a county's votes -- that can be taken by the secretary of state.
That Wardlay noted, includes what happened in 2022 when a judge ordered the reluctant Cochise supervisors to comply. And she noted there are real penalties for officials who refuse, pointing out that Supervisors Peggy Judd and Tom Crosby both were indicted on felony charges.
Judd entered into a plea deal; Crosby's case is still pending.
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