The Maricopa County Superior Court rejected a request by Secretary of State Adrian Fontes to maintain speech restrictions in his Election Procedures Manual (EPM) earlier this week. The request was a stay on an injunction issued earlier this month, pending an appeal.
In the ongoing case, Arizona Free Enterprise Club v. Fontes, the court issued an injunction against the EPM’s provisions regulating speech at and near voting locations. Judge Jennifer Ryan-Touhill ruled that the provisions were unconstitutional. The Arizona Free Enterprise Club filed its lawsuit against Fontes over the EPM in February.
🚨 BREAKING: Adrian Fontes Loses Again!
Judge DENIES request to stay injunction on Speech Restrictions in EPM until after the election.
“The Court reiterates its prior finding: “[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.” pic.twitter.com/l75BsvX1Ke
— Arizona Free Enterprise Club (@azfec) August 28, 2024
Fontes had argued that the ruling was an “overbroad injunction.” The court disagreed in its Wednesday ruling, stating that Arizona law contains ample voter protections and Fontes’ EPM would supersede those laws.
“The Court understands Defendants’ Position that the disputed section is intended to be ‘guidance’ for election officials. That was the purpose of the evidentiary hearing — to tell the Court why Plaintiffs’ position was wrong and the EPM is non-binding assistance to help others enforce voting regulations. The Court simply disagreed with Defendants’ position and found the disputed section was not guidance but, instead, an overreach by the Secretary of State that restricted free speech. To reiterate, while Defendant claims confusion exists over the Court’s Ruling because Defendants believe they have issued advisory assistance to poll workers, the Court finds this without merit and reminds Defendants all citizens must follow the law.” (emphasis added)
The superior court added that it wasn’t bound to analyze every EPM phrase and determine its compliance with Fontes’ issued hypotheticals, such as what poll workers should do in the event an armed crowd appeared outside the voting location.
Although the superior court had issued an injunction against the speech-related EPM provisions, Fontes styled the ruling as a win.
“The refined injunction keeps in tact [sic] essential protections such as the 75-foot limit on electioneering, and a ban on video and photography to guard the privacy and security of voters at polling locations,” stated Fontes. “This order reinforces the harassment and intimidation around ballot drop boxes is explicitly against the law.”
EPM Victory for Voters in Arizona pic.twitter.com/H0bkBWav3r
— Arizona Secretary of State (@AZSecretary) August 8, 2024
In its earlier ruling, the court had determined that the EPM language was “problematic” because it interpreted existing law in such a way as to expand it, and impermissibly allowed for subjectivity in determining violations of the law. The court stated that Fontes’ EPM would, in all likelihood, deprive individuals of their right to vote even if those individuals hadn’t violated the law.
“The Secretary has no authority to change a mens rea, regardless of the objective of the language. Moreover, neither law allows for a subjective belief of the alleged target of the crime but rather focuses upon the acts of the criminal (e.g., force, violence, infliction) or the victim (‘a reasonable person’),” stated the court. “Contrary to Defendant’s arguments, the EPM is expanding criminal liability for acts that may not otherwise fall under [the law]. And even in those situations where criminal liability is not a realistic outcome (e.g. a county attorney declines to prosecute), a person may nevertheless be removed from the polling location and unable to cast their ballot.”
