Two Courts Rule on Arizona Rules Concerning Election Harassment and Certification
Today, both a federal and state court delivered rulings on several provisions of 2023 Arizona’s Election Procedures Manual (EPM), which outlines how elections should be run in the state.
A Trump-appointed federal judge in Arizona temporarily blocked the implementation of two rules from the EPM. This ruling stops the “Voter Nullification Provision,” which allows the secretary of state to proceed with vote canvassing and certifying statewide results if a county refuses to certify its results. It will also enjoin the “Speech Restriction Provision,” making it harder for election officials to protect voters from intimidation at polling places.
A state appeals court today separately halted a lower court ruling that would have blocked EPM provisions that help election officials prevent voter intimidation. The judges made clear that election officials have “a responsibility to train poll workers and establish policies to prevent and promptly remedy any instances of voter intimidation,” as the EPM states. Additionally, the order empowers election officials to prohibit weapons in polling places and call on marshals to resolve disruptions at the polls. However, the Speech Restriction Provision blocked by the federal court remains blocked by the state court order.
It remains unclear how the state and federal rulings on the voter intimidation provisions will impact enforcement.
On July 8, right-wing groups American Encore, America First Policy Institute (AFPI) and an Arizona voter filed a lawsuit against Arizona’s Secretary of State Adrian Fontes (D), Attorney General Kris Mayes (D) and Gover Katie Hobbs (D) in federal court, challenging two provisions of the state’s 2023 EPM. The case against Hobbs was later dropped.
The first provision under scrutiny—the “Vote Nullification Provision”—allows the secretary of state to conduct a vote canvass and certify statewide election results even when county officials refuse to certify local results. In the event a county does not certify by the deadline, the secretary of state can proceed with the statewide canvass without that county’s votes.
The plaintiffs argued that this provision violates the First and 14th Amendments because it imposes an “unconstitutionally severe burden on the right to vote” that outweighs the government’s interest in an orderly election and timely results.
However, according to state officials, the EPM is written to plan for every potential contingency, no matter how remote. In his response brief Secretary Fontes wrote that the Vote Nullification Provision would only come into effect if a long series of unlikely events that have never occurred in Arizona takes place. Before that step, though, the secretary would use every tool possible to compel county officials to certify their results, including asking a court to order them to do so. Moreover, the government argued that without the provision, if a county refuses to certify in a timely manner, then the secretary would be forced to halt the entire state’s canvass, thereby nullifying the votes of every Arizona voter.
The Vote Nullification Provision was adopted in the 2023 EPM after two Republican members of Cochise County’s Board of Supervisors refused to certify midterm election results in 2022. Ultimately, they complied following a court order. The two individuals were later charged with felonies for knowingly interfering with efforts to complete the canvass of the 2022 statewide general election.
The second provision—the “Speech Restriction Provision” —bans any activity that “threatens, harasses, intimidates, or coerces” voters inside or outside 75 feet of a polling place. The plaintiffs claimed that this provision is overly broad, violating the First Amendment’s free speech principle and the 14th Amendment’s Due Process Clause.
Attorney General Mayes argued that the purpose of the second provision—which was first put in place under Republican Governor Doug Ducey—is to help election officials preserve order and security at the polls, not to regulate members of the public. According to her brief, it does not create new laws restricting speech, but rather explains existing law in lay terms to help election officials understand when they can step in to protect voters from intimidation.
The Speech Restriction Provision was likewise challenged in state court by a separate conservative group, the Arizona Free Enterprise Club. The organization filed a lawsuit in February asking the court to strike down the EPM’s voter intimidation provisions, among others. The trial court judge determined that the voter intimidation provisions violated free speech and temporarily blocked them. Arizona’s secretary of state and attorney general appealed, leading to today’s state court decision.
Litigation in both cases will continue.
Read the federal court order here.
Read the state court order here.