Court: Arizona’s Election Guidance Illegally Restricts Free Speech

Provisions in Arizona’s election rulebook restricting voters’ free speech are “unenforceable,” a state judge ruled on Monday.

Writing for the Maricopa County Superior Court, Judge Jennifer Ryan-Touhill determined that the 2023 Election Procedures Manual (EPM) issued by Secretary of State Adrian Fontes, a Democrat, contains guidance that infringes upon Arizonans’ First Amendment right to free speech.

“The EPM’s language has restricted what the Secretary finds acceptable regarding behavior, both speech and acts. Our state constitution guarantees a right to speak freely and is only restricted for an abuse of that right,” Ryan-Touhill wrote.

In Arizona, the EPM provides guidance to election officials relating to mail ballots, voter registration, and other election-related matters. The secretary of state is required to produce the guidance by Dec. 31 of every odd-numbered year and receive approval from the governor and attorney general before it can be finalized for use in elections.

In its initial lawsuit filed against Fontes in February, the Arizona Free Enterprise Club (AFEC) alleged the EPM’s restrictions on activities such as “watching drop boxes, speaking to people at election sites, and photographing activity at election sites” criminalizes conduct “which is plainly protected by the First Amendment and article 2, sections 5-6 of the Arizona Constitution.” That allegation is in reference to provisions within the EPM permitting local election officials to develop measures inhibiting individuals’ ability to observe ballot drop boxes and classifying behavior at polling sites, such as “raising one’s voice or taunting a voter or poll worker,” as potentially “intimidating conduct.”

AFEC filed an amended complaint in April, according to Monday’s decision. America First Policy Institute and Arizona resident Philip Townsend are also plaintiffs in the case.

Ryan-Touhill noted that guidance included in the section of the EPM governing conduct at polling locations “goes too far” by attempting to police the behavior of both election officials and the general public. She further determined those provisions constitute “speech restrictions in violation of our Arizona Constitution,” and that the EPM “misstates or modifies [state] statutes, and fails to identify any distinction between guidance and legal mandates.”

“[M]any of the prohibitions listed in the EPM are free speech and protected by both the Arizona Constitution and the U.S. Constitution,” Ryan-Touhill wrote. “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?”

In determining plaintiffs “have proven a strong likelihood of success on the merits” of the case, the court declared the EPM provisions restricting Arizonans’ speech “unenforceable” and prohibited their enforcement “during the pendency of this litigation.”

The court did, however, grant Fontes and Attorney General Kris Mayes’ motions to dismiss plaintiffs’ allegations against the EPM’s guidance on voter registration, the state’s active early voter list, and early voter signature verification.

“The judge correctly realized that certain portions of Secretary Fontes’ illegal and radical manual were nothing more than a brazen attempt to destroy the integrity and transparency of state elections,” AFEC President Scot Mussi reportedly said in a statement. “Secretary Fontes and his team of leftwing ideologues must conform the entire manual to state law as is their statutory duty.”

Fontes’ office has pledged to appeal the ruling, according to local media.