By Matthew Holloway |
Speaking with KTAR’s Jim Sharpe and Jayme West last week, Arizona Secretary of State Adrian Fontes openly attacked the Arizona Free Enterprise Club after the group successfully fought to strip away rules from the 2023 Elections Procedures Manual (EPM). The very next day, AFEC President Scott Mussi responded.
As previously reported by AZ Free News, Maricopa County Superior Court Judge Jennifer Ryan-Touhill ruled that Fontes’ 2023 EPM contained speech restrictions that violated the Arizona Constitution, as well as misstatements and modifications of statutes, and failures to identify distinctions between guidance and legal mandates.
Fontes began by immediately mischaracterizing the lawsuit from the Arizona Free Enterprise Club saying, “First and foremost, I’m going to break a rule and talk about pending litigation. Usually I don’t, but this is important and this manual, the Elections Procedures Manual is promulgated by the Secretary of State every two years. And the rules that are in question right now are guidelines basically for elections workers, for election administrators across the state. And they do in this section particularly help to protect them and voters from harassment and intimidation, specifically using language like blocking the entrance to a voting location. Also, following voters or poll workers coming or leaving voting locations, including to or from their vehicles.
This is some of the language that we put in there, which was also in the 2019 manual, by the way, that the Free Enterprise Club wanted to block and they have now blocked. It is as if the Free Enterprise Club wants voters to get followed to and from their vehicles to polling locations. It is as if the Free Enterprise Club is okay with this.
Check this, they had this blocked by the judge too, intentionally disseminating false or misleading information at voting locations. So is the Free Enterprise Club want people to be lied to?”
Jayme West asked, “But that’s free speech, right? Yeah.”
Fontes answered with a rebuke to the First Amendment, “Is it when you are inside of the 75-foot zone? Look, not all speech is protected. Every American knows this. You can’t yell fire…” he began to quote a classic legal fallacy.
As reported by Reason, the origin of this legal theory came from an analogy written in the 1919 case Schenk v. United States. That ruling was later overturned in 1969 by Brandenburg v. Ohio.
As Reason’s Emma Camp cited, Foundation for Individual Rights and Expression President Greg Lukianoff, wrote, “Anyone who says ‘you can’t shout fire! in a crowded theatre’ is showing that they don’t know much about the principles of free speech, or free speech law—or history. This old canard, a favorite reference of censorship apologists, needs to be retired. It’s repeatedly and inappropriately used to justify speech limitations.”
Host Jim Sharpe put the conversation back on track though, “You’re not allowed the electioneer within those 75 feet.”
“That’s exactly right.” Fontes said. “But what the Free Enterprise Club is doing is chipping away at a long established statutes. They’re chipping away at our ability to help the folks out there in our 15 counties regulate the behavior during election seasons. They basically want someone to be able to come up and scream and yell at voters as they’re standing in line to vote.”
West pushed back on the Secretary though, “But not necessarily about the election or electioneering. I mean you could just be yelling at somebody, right? It doesn’t have to be about the specific election itself right?” Fontes began to argue with her, “Is that how we want our voters to be treated? “ “No, I’m just saying not…” she began when Fontes cut her off. “That’s why I have…” But West continued, “not considered electioneering.”
Fontes continued saying, “…why I’m going to fight like heck to make sure that we have peaceful processes so that our voters are treated with dignity during this incredibly important point in time. Because here’s the deal, you have to stand in line in some circumstances and because the regulation is that you have to be in line, the government is forcing you to be in that line. You should be protected while you’re in that line to vote.
He then directly attacked the Arizona Free Enterprise Club claiming, “So the Free Club is basically saying, we want chaos, we want lies. We want people to be able to block entrances to voting locations. That’s what the Free Enterprise Club is saying. By asking for this order, I’m going to fight tooth and nail against this nonsense. So the next steps, as you asked, we have the capacity to appeal. Our lawyers are working on it right now. I’m going to protect every voter. I don’t care if you’re in Sun City, east Mesa or in Holbrook. I’m going to do everything I can to make this process peaceful and reasonable.”
The very next morning, Sharpe and West invited Arizona Free Enterprise Club President Scott Mussi to answer Fontes’ bold-faced politically-driven attack.
“Jim, Jamie, thanks for having me on this morning. These claims being made by Secretary of State Fontes are just outrageous, and it’s ridiculous that he’s attacking and maligning our organization, our 15,000 supporters and activists throughout here in the state of Arizona. Our donors, who he made veiled attacks saying that people should stop supporting our organization because of this ruling. We filed this lawsuit because simply put, Adrian Fontes included language in his Election Procedures Manual that exceeded its statute and was unconstitutionally overbroad. It constrained speech rights.
He’s citing things that simply, there’s already statutes and we didn’t challenge any specific statute. We challenged the language in the procedures manual itself and the language in the manual cannot rewrite state law, cannot create new laws, and there’s laws against the things that he’s describing. The things that we sued over are things dealing with speech constraints where he included vague language that’s undefined that could be used against people that are trying to simply engage in their First Amendment rights at poll locations.”
Sharpe asked Mussi, “So would you be okay with some of the provisions in the Election Procedures Manual that you’ve asked to have removed if they were worded in a more precise manner?”
Mussi replied, “The section of the Election Procedures Manual that we sued over included, again, as I mentioned before, vague language if it’s drafted in a way that’s consistent with what state law is or what statute is. And again, for example, he’s talking about blocking people. That’s against state law. You can’t do that. And that goes beyond even what’s really to an election. For example, nobody could show up at your guys’ radio station and block your ability to go to your vehicle. There’s already statutes against harassing other people. You can’t do those things. But that’s not what is Election Procedures Manual in the section that we were challenging does. Again, it includes language that says that if you raise your voice or say things that are offensive and these things are undefined, and if these things are enforced, you can be not only kicked out of the polling location, but you can be prosecuted.
The irony of all of this is that in the public ranting that Adrian Fontes is engaging in, where he is raising his voice, something could say or engaging a language that many people could find offensive, especially when he’s maligning our organization. Ironically, it could be used against him to kick him out of a polling location. It is bizarre. I think that the judge was correct. I would encourage everybody to read the ruling that the judge issued yesterday or earlier this week outlining this because it’s very clear these terms that he included in the Election Procedures Manual are overly broad. They infringe on people’s constitutional rights to engage in the election process.”
West sought some clarification from Mussi asking, “I asked him, I said, is it just an issue of it being the language being too broad? But he said that specifically your organization, the Arizona Free Enterprise Club, wants to make it okay to harass voters waiting to cast ballots at polling places.”
He answered, “And again, those comments and claims are outrageous and only vindicates that we were correct in filing this lawsuit.”
“We’re not just talking about just some individual. He is the top election officer here in the state of Arizona who’s now again, maligning and attacking our organization, our 15,000 activists and supporters throughout the state of Arizona. And we’re supposed to believe that he’s not now going to use this vague language that he included in the Election Procedures Manual to impinge on people’s First Amendment rights to engage in the political process.
And again, just based on his own behavior, he violated his own guidelines within his Election Procedures Manual. Or it could be interpreted that way. And that’s the problem because somebody does have a First Amendment right. If Adrian Fontes wants to show up at a polling location and complain that he lost a lawsuit to the Free Enterprise Club and say the same mistruths and lies that he said on your radio program, he does have a First Amendment right to do that.”
When reminded of the 75-foot barrier for electioneering under the law by Sharpe, Mussi added, “That’s correct. That’s another thing too that he said was factually wrong. He was talking about people. It’s against state law to go within the 75-foot parameters and election area. The Election Procedures Manual can’t change any of those statutes. And we weren’t challenging statutes. We were challenging this vague and overbroad and unconstitutional language that he included in the Election Procedures Manual.”
According to KTAR, Fontes said that his office plans to appeal the ruling and is hoping to expedite the request citing the general election being just three months away. In her scathing ruling, Judge Touhill called the EPM provisions “overbroad” and “unenforceable.”
Matthew Holloway is a reporter for AZ Free News. Follow him on X for his latest stories, or email tips to Matthew@azfreenews.com.
