A federal judge on Friday night issued a ruling that blocks changes to the Election Procedures Manual (EPM) attempted by Arizona Secretary of State Adrian Fontes that would have restricted speech and potentially forfeited votes from entire counties who declined to comply with deadlines set by the state.
U.S. District Court Judge Michael Liburdi (pictured above), who was nominated by former President Donald Trump, temporarily blocked Fontes’ proposed rule change that would give his office the power to decline to accept the votes from an Arizona county that refused to certify its ballots, even if local officials presented concerns about fraud.
This rule, Liburdi wrote, would give Fontes’ office “nearly carte blanche authority to disenfranchise the ballots of potentially millions of Arizona voters,” giving the court cause to act immediately and prevent the enforcement of that element of Arizona’s EPM, which is used to train poll workers and conduct elections.
Liburdi also barred Fontes (pictured here) from enacting any new rules about speech because the EPM fails to delineate that its speech rules only apply to polling locations and a 75-foot perimeter around them.
“Plaintiffs do not have fair notice of what speech is prohibited,” wrote Liburdi, after declaring that under the EPM, speech that a listener finds too loud, too offensive or too insolent – potentially anywhere in Arizona – is prohibited,” though “it has been long established” this sort of speech cannot “be prohibited because it concerns subjects concerning our sensibilities.”
The lawsuit remains ongoing, but Liburdi’s order will prevent Fontes from enforcing key parts of his EPM on Election Day. It was filed by American Encore, America First Policy Institute, and an Arizona voters against Fontes and Arizona Attorney General Kris Hobbs.
A panel of judges on the Arizona Court of Appeals, led by Judge Michael S. Catlett, also sided against Fontes in a separate, state lawsuit Friday, after the Arizona Free Enterprise Club (AFEC) similarly challenged speech regulation changes made by the Secretary of State to the EPM, when the judges allowed an earlier injunction to remain in place ahead of the November elections.
In that earlier injunction, Maricopa County Superior Court Judge Jennifer Ryan-Touhill wrote, “many of the prohibitions listed in the EPM are free speech and protected by both the Arizona Constitution and the U.S. Constitution.”
Ryan-Touhill questioned, “What, for example, constitutes a person communicating about voter fraud in a harassing manner? Or, for that matter, ‘posting’ a sign in an intimidating manner? How does a person either do this behavior—whatever it means—or avoid it? And what content printed on a t-shirt might be offensive or harassing to one and not another? What if the t-shirt says, ‘I have a bomb and I intend to vote!’? Where does the Secretary draw the line?'”
Prior to the lawsuits launched by private organizations and individuals, the Arizona Legislature suggested it would sue over Fontes’ changes to the EPM, with House Speaker Ben Toma (R-Peoria) and Senate President Warren Petersen (R-Mesa) warning of litigation in January.
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Tom Pappert is the lead reporter for The Tennessee Star, and also reports for The Pennsylvania Daily Star and The Arizona Sun Times. Follow Tom on X/Twitter. Email tips to [email protected].
