By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — A judge has immediately blocked Secretary of State Adrian Fontes from enforcing rules about what people can do in and around polling places.

In a new order, Maricopa County Superior Court Judge Jennifer Ryan-Touhill reaffirmed her earlier conclusion that some of what Fontes put into the Elections Procedures Manual violates the First Amendment rights of individuals. These range from what people can wear at polling places to their activities outside.

But two Democratic state senators say they see something darker in what the ruling will allow.

“The Free Enterprise Club has gotten a judge to throw out common-sense guidance included in Arizona’s official election rules addressing and attempting to stop voter intimidation,” said Priya Sundareshan of Tucson and Anna Hernandez of Phoenix in a prepared statement. “This is nothing short of a coordinated campaign by radical right-wing organizations to normalize and expand efforts to scare voters from dropping off their early ballots on or before election day and make it more difficult to vote.”

As proof, they cited a letter the Conservative Political Action Committee sent to Fontes and Attorney General Kris Mayes saying the organization intends to do “drop box observation” so that interested parties `can rely upon and reassure the pblic in Arizona that drop boxes are not being fraudulently used.”

“It is our intention to place monitors near a selection of drop boxes in select counties across Arizona,” reads the letter from CPAC Chairman Matt Schlapp. “We also are considering using open-source information to identify those who are not eligible to vote.”

Schlapp said the observers will come no closer than 75 feet, complying with existing laws about what can occur adjacent to polling places and drop boxes. But they said they may have photo or video equipment “to document any activity that could be viewed as legally questionable.”

“This is exactly the type of behavior that led voters to submit formal complaints that they were being harassed and intimidated for voting in 2022,” the pair wrote.

In fact, in that election, a federal judge issued a restraining order about what can and cannot occur near drop boxes, barring them from openly carrying weapons or “visibly wearing body armor” within 250 feet of drop boxes. It also barred members of the particular group that was sued from taking photos, recording, following or yelling at voters within 75 feet of drop box locations.

That order against one particular group, however, has long since expired.

Aaron Thacker, press aide to Fontes, called what CPAC is proposing “a ruse” to intimidate voters, saying it is really designed to allow intimidation of voters.

But Scot Mussi, president of the Free Enterprise Club which challenged the rules and got the ruling from Ryan-Touhill, said his goal was to ensure that what was being proposed by Fontes doesn’t interfere with First Amendment rights. And he took a slap at the secretary of state for asking the judge to delay her original findings that his went too far.

“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 also can be heard from inside the polling place, something the judge found overbroad.

But that question of activity outside the 75-foot radius also goes to having people armed with video cameras taking photos of those who use the drop boxes, something Thatcker said could be considered intimdating.

And he questioned whether the CPAC proposal to use “open source information” would itself lead to intimidation, such as what happened in prior elections where groups were posting videos of those who used the drop boxes as well as the vehicles they were driving.

Thacker said there’s another flaw in the premise that watching the boxes prevents fraud.

Consider, he said, someone who brings ballots to the drop box for his elderly parents for whom he is the primary caregiver, something that is allowed under state law. Thacker said there is no way for someone who is not part of the election system to determine whether that person is acting legally or violating state laws against “ballot harvesting.”

“So it’s clearly about intimidation,’’ he said.

Sundareshan told Capitol Media Services that the rules in the Elections Procedures Manual — the ones that the Free Enterprise Club got the judge to enjoin — are designed precisely to prevent voter harassment.

The problem with that, Ryan-Touhill concluded, is there is nothing in state election law that actually makes harassment 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.

That, she concluded, was too nebulous to allow it to be enforced, particularly as violations of the Elections Procedures Manual are state crimes punishable by fines and jail time.

What also is problematic, the judge 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.

It even extends to issue of what someone is wearing.

Mussi said there is a First Amendment right to dress as one wants, even if the clothing contains a message. But he said that can get into gray areas.

For example, he said, someone could show 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.

Sundareshan, however, said the timing of all this — the challenge to the rules, the CPAC letter and a plan by the Republican National Committee to recruit 100,000 people to monitor early and election-day voting — is hardly coincidental.

“They gave us a clear idea of what is intended by various conservative groups as their plans for monitoring that also could lead to potential intimidation,” she said.

Strictly speaking, the judge’s ruling barring Fontes from enforcing the provision of the manual isn’t the end of the matter.

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.