By Howard Fischer
Capitol Media Services
PHOENIX -- A federal judge is at least temporarily blocking enforcement of a rule that could allow election workers to kick someone out of a polling place for wearing a uniform -- and possibly have them arrested.
In a new ruling late Thursday, U.S. District Court Judge Michael Liburdi said the rule crafted by Secretary of State Adrian Fontes, goes beyond what Arizona law says is illegal. Beyond that, the judge concluded, the rule is crafted in a way that is so vague that it provides no clear guidance for voters to determine whether what they wear will run afoul of the rules -- and no clear guidance for election workers to determine which clothing is and is not allowed.
Thursday's ruling is at least an interim victory for the Pima County Republican Committee which had challenged provisions that Fontes put into the latest version of the Elections Procedures Manual. It means that people who show up at polling places for the July 21 primary are in no danger of being turned away or facing criminal charges.
But Liburdi said there's nothing illegal about a rule that people who engaged in loud electioneering outside the 75-foot limit -- the protected zone against such activity -- can be removed or even subject to arrest if they can be heard inside polling places.
Liburdi acknowledged there is nothing specifically in state law that makes audibility -- as opposed to where someone is located -- a factor in determining whether there is illegal electioneering going on. And he said that the First Amendment protects political speech, including electioneering, near the polls.
"But a state may decide that some forms of advocacy should be excluded from the polling place, to set aside an island of calm in which voters can peacefully contemplate their choice,'' Liburdi wrote.
"Defendants may reasonably take steps to ensure that partisan discord not follow the voter up to the voting booth,'' he said, even if such displays would not be of concern in other situations.
The key, said the judge, is that such rules must rely on "objective, workable standards'' and not be subject to an election officials "unguided judgment.'' And in this case, Liburdi said, the question of whether electioneering from 75 feet away can be heard inside a polling place is sufficiently based on "an objective, perceptible fact.''
Liburdi, however, had a different take about a provision in the manual governing impermissible conduct at polling places. It defines that to include "impersonating a law enforcement officer or otherwise wearing clothing, uniforms or official-looking apparel intended to deter, intimidate, or harass voters.
That got the attention of David Smith, a former officer with the Tucson Police Department and Department of Public Safety.
"We don't get to pick our days off,'' he told the court.
What that means, Smith said, is that officers may stop at a polling place while enroute to the police station -- and do so in uniform.
"I believe that this discretion would or has a high probability of being purposely abused or inadvertently misused to turn law enforcement officers away from voting locations,'' he said.
Liburdi acknowledged that state officials submitted a letter to him saying that the apparel provision does not mean that a law enforcement officer or military member who shows up to vote in uniform should be turned away for that clothing.
The judge noted, however, that even before the Republicans filed suit, election officials refused to entirely disavow enforcement of the clothing provision, stating instead that enforcement "depends on the facts.''
But the issue, he said, is even more complex than that.
Liburdi noted that the rule about clothing covers not just those in official uniforms but forbids wearing clothing or official-looking apparel "intended to deter, intimidate or harass voters.''
One big problem with that, the judge said, is it makes enforcement by poll workers dependent not on specific, measurable standards but instead makes them why someone showed up in those clothes.
"It asks the official not only to judge whether apparel is intimidating but also to discern the wearer's intent,'' Liburdi wrote.
"Intent is of this kind is not observable,'' he said. "An election official cannot read it from the garment, and the manual offers no standard for inferring it from anything else.''
Consider, Liburdi said, a sheriff's deputy who voters in uniform on the way to work, a veteran in a flight suit, or even a voter in a shirt wearing "pointed political slogan.''
"Whether any of these is intended to harass voters depends entirely on the impression it makes on the particular official at the particular polling place,'' he said.
Then there's the other side of the issue. The judge said the provision is so vague is that it "does not provide the person of ordinary intelligence a reasonable opportunity know what is prohibited.''
"Because the provision makes the lawfulness of a voter's attire depend on a poll worker's unguided assessment of the voter's intent, it fails to give fair notice and invites discriminatory enforcement,'' Liburdi wrote.
What makes the rule problematic, the judge said, is that election officials can decide that someone breaking the rule can not only be removed from a polling place but that it can result in arrest, with violations of the Elections Procedures Manual designated by law as a Class 2 misdemeanor which can carry fines of $750 as well as up to four months in jail.
Fontes, in a prepared statement, said he was "encouraged'' by the judge upholding some of the provisions of the manual. But the secretary made no comment about Liburdi siding with the Pima County Republican Party on the clothing issues.
Conversely, Kathleen Winn who chairs the Pima GOP, cheered the finding on uniforms but said she was disappointed that the judge decided that electioneering activities outside the 75-foot perimeter could be precluded if the noise reached inside polling places.
Strictly speaking, Liburdi's order is not the last word, as he was ruling only on whether to enjoin enforcement of the challenged provisions. That gives either side a chance to seek review after a full-blown trial -- something that can't occur before the primary later this month.
There was no immediate response from either side about pursuing the case further.
--
On X, Bluesky, and Threads: @azcapmedia