The Arizona Free Enterprise Club (AFEC) filed a lawsuit last week against Secretary of State Adrian Fontes, accusing him of making illegal changes to the state’s Election Procedures Manual (EPM). Represented by the America First Policy Institute, Davillier Law Group, and Grand Canyon Legal Center, AFEC said the revisions improperly place protected political speech at risk of criminal prosecution and have an unconstitutional chilling effect on protected political speech.
“Secretary Fontes has produced one of the most radical elections procedures manuals in our state’s history,” said Scot Mussi, AFEC’s president. “If the illegal provisions of this manual are allowed to stand, the integrity and transparency of state elections would continue to dissipate at the hands of leftwing ideologues. We hope the court agrees with our arguments and forces the Secretary to adhere to state law.”
The secretary of state is required by law to update the EPM every other year. It requires approval by the attorney general and governor. In 2021, then-Attorney General Mark Brnovich refused to sign off on the revisions then-Secretary of State Katie Hobbs made to the EPM since they could lead to criminal penalties, he said. She refused to comply, forcing the state to continue using the 2019 version, which is still in effect. On December 30, 2023, Hobbs as governor and Attorney General Kris Mayes approved Fontes’ new revisions.
AFEC’s complaint contends that the revised draft “contains several ‘rules’ that are unconstitutional and that also contradict statutory requirements established by the legislature and therefore lack the force of law. These rules implement the Secretary’s policies rather than those specifically delegated to him by the Arizona Legislature.”
A.R.S. § 16-452(C) proscribes criminal penalties, which are class 2 misdemeanors, for any violations of the EPM. The complaint cited the 1970 Arizona Court of Appeals decision State v. Phelps, which stated regarding the statute, “[I]t must be remembered that this being a crime, the statute must be strictly construed and not broadened beyond the clear and express intent of the legislature.”
It also cited the 2022 Arizona Supreme Court decision Roberts v. State, which said, “the legislative power to enact criminal laws must be delegated expressly and not in a ‘sweeping,’ ‘oblique,’ or ‘indirect’ fashion.”
One of the objections is to the portions addressing observers at ballot drop boxes and polling places. A.R.S. 16-452(A) states that “the secretary of state shall prescribe rules to achieve the maximum degree of correctness, impartiality, uniformity and efficiency” for Arizona elections, but the complaint said those portions “cast a net far wider than necessary” to comply.
The revisions prohibit several actions within 75 feet of a ballot drop box, including repeatedly entering or staying within 75 feet and following or speaking to someone within that space. “Aggressive behavior,” which is not fully defined, and videotaping voters or poll workers is prohibited near polling places.
The complaint asserts, “By regulating conduct such as observing a drop box within 75 feet of the drop box, speaking to voters and election workers, and photographing activity at election sites, the EPM has criminalized activity which is plainly protected by the First Amendment and article 2, sections 5-6 of the Arizona Constitution.”
Those sections address the right of petition and assembly, and freedom of speech and of the press.
AFEC cited the landmark U.S. Supreme Court case Brandenburg v. Ohio, which held that only speech “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” can carry a criminal sanction.
AFEC provided an example of how the law was unclear about what could be considered criminal behavior. “[I]t is highly unclear what might constitute ‘insulting’ a poll worker, ‘aggressive behavior,’ or ‘raising one’s voice,’” the brief said. “If a voter expresses frustration at a poll worker for long lines or tabulator failures, is the voter committing a crime?”
Additionally, “If Burton Barr Central Library, for example, on Central Avenue in midtown Phoenix is again used as a polling place (as it has been in prior years), does this mean that someone parading down the street while touting the virtues of their favorite candidate from a megaphone has committed a crime?”
Furthermore, the Arizona Supreme Court stated in the 2019 case Brush & Nib Studio v. City of Phoenix that restrictions on political speech “are subject to strict scrutiny, making these restrictions unconstitutional unless they are narrowly tailored to achieve a compelling governmental interest.”
AFEC argued that the revisions fail under this strict scrutiny.
“These provisions,” AFEC said, “are not necessary to achieve a compelling governmental interest because the state legislature has already enacted laws against intimidation generally and voter intimidation specifically.”
It explained how those laws are narrowly tailored and made it very clear what type of behavior will be criminalized, going into extensive detail.
AFEC went on, “[T]hey not only define intimidation but also draw its bounds narrowly as encompassing the threatened use of violence or coercion or the use of fraud and do not seek to prohibit other speech-related conduct except within the 75-foot limit.”
The second main objection from AFEC was to open up primaries to federal-only voters, which violates state law. Federal-only voters have not provided proof of citizenship, so they are not allowed to vote on races or issues other than federal. Furthermore, the courts have ruled that they may vote in congressional races but not in the presidential race. After that was clarified in litigation, Arizona passed a law prohibiting them from voting in presidential elections, A.R.S. 16-127(A)(1).
AFEC also pointed out that this provides open primaries for federal-only voters since they can vote in a political party’s presidential primary even if they’re not registered to vote with that party.
AFEC demanded a declaratory judgment stating that the revisions to the EPM lack the force of law and requested costs and attorneys fees.
The Republican National Committee, the Arizona Republican Party, and the Yavapai County Republican Party sued Fontes over the EPM last week. Arizona legislative leaders threatened to sue Fontes last August over his proposed revisions.
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Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on Twitter / X. Email tips to [email protected].
