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.
ICYMI: A Maricopa County Superior Court Judge has ruled that certain portions of Secretary Fontes’ radical Elections Procedures Manual violated Arizonans’ First Amendment rights. https://t.co/HwhZi45sXk
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?”
We applaud the court’s protection of Arizonans’ First Amendment rights during the exercise of their sacred privilege to vote in free and fair elections. Secretary Fontes and his team of leftwing ideologues must conform the entire manual to state law as is their statutory duty.
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 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.”
The Maricopa County Superior Court ruled against provisions of Arizona’s 2023 Elections Procedures Manual (EPM) on Tuesday.
The EPM, drafted and passed under Democratic Secretary of State Adrian Fontes, was challenged in court earlier this year by the public policy nonprofit, Arizona Free Enterprise Club (AFEC).
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.
Ryan-Touhill ruled that the EPM’s provisions on speech were unnecessary, vague, overbroad, and serving as universal prohibition on conduct.
“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,” wrote Ryan-Touhill. “[M]any of the prohibitions listed in the EPM are free speech and protected by both the Arizona Constitution and the U.S. Constitution. 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?”
Ryan-Touhill highlighted 13 instances of “problematic language” within Fontes’ 2023 EPM in her ruling:
[N]o electioneering may take place outside the 75-foot limit if it is audible from a location inside the door to the voting location.
Any activity by a person with the intent or effect of [ ] harassing, [ ] (or conspiring with others to do so) inside or outside the 75-foot limit at a voting location is prohibited.
The officer in charge of elections has a responsibility to train poll workers and establish policies to prevent and promptly remedy any instances of voter intimidation.
The officer in charge of elections should publicize and/or implement the following guidelines as applicable:
The inspector must utilize the marshal to preserve order and remove disruptive persons from the voting location.
Openly carrying a firearm outside the 75-foot limit may also constitute unlawful voter intimidation, depending on the context.
Aggressive behavior, such as raising one’s voice or taunting a voter or poll worker.
Using [ ] insulting [ ] or offensive language to a voter or poll worker. Disrupting voting lines.
Following voters or poll workers coming to or leaving a voting location, including to or from their vehicles.
Intentionally disseminating false or misleading information at a voting location. . . .
Directly confronting, questioning, photographing, or videotaping voters or poll workers in a harassing [ ] manner, including when the voter or poll worker is coming to or leaving the polling location.
Asking voters for “documentation” or other questions that only poll workers should perform.
Raising repeated frivolous voter challenges to poll workers without any good faith basis, or raising voter challenges based on race, ethnicity, national origin, language, religion or disability.
Posting signs or communicating messages about penalties for “voter fraud” in a harassing or intimidating manner.
Judge Ryan-Touhill assessed that the EPM’s provisions modified the criminal intent and effect of crimes outlined by Arizona laws against harassment and voter intimidation or threats.
“The Secretary has no authority to change a mens rea, regardless of the objective of the language,” said Ryan-Touhill. “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’).”
AFEC President Scot Mussi said in a press release that he was happy to see the court protect Arizonans’ First Amendment rights within elections.
“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,” said Mussi. “Secretary Fontes and his team of leftwing ideologues must conform the entire manual to state law as is their statutory duty.”
The court ordered the sections of the EPM containing speech restrictions to be unenforceable.
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Last Friday, the AZ Free Enterprise Club filed a lawsuit in federal court against Arizona Secretary of State Adrian Fontes for failing to comply with the National Voter Registration Act’s (NVRA) mandate that he maintain accurate and updated voter registration records. Why? The data shows that there are 500,000 unaccounted for registered voters who are not qualified either due to death or moving out of the state, and in total, up to more than a million voters on the rolls who should not be registered.
Clean and accurate voter rolls are the bedrock of elections run with integrity. Ensuring only those eligible to vote may register and are on the rolls means that only eligible voters may vote in an election. It’s a basic principle: garbage in, garbage out. If we begin with bad data – ineligible individuals on the rolls – the system is susceptible to allowing ineligible ballots to be cast.
That’s why in 2022 we championed two landmark pieces of legislation to accomplish just that, and why, unsurprisingly, Marc Elias and the left’s lawfare machine immediately sued to stop these commonsense safeguards from going into effect. HB2492 ensures only eligible citizens who have provided proof of citizenship can register to vote and HB2243 requires regular and routine voter roll maintenance using several databases of information, with regular reports to the legislature of the results.
Both these laws are consistent with the NVRA’s mandate that states maintain accurate voter registration lists. But right now, Adrian Fontes is failing in his obligations under both, and that’s why we have filed a lawsuit in federal court to force him to do his job.
Four Counties Have More Registered Voters Than People
How do we know? According to the most recent census and voter registration data, more than 90% of the voting age population in Arizona is purportedly registered to vote. The national average is 69.1%. Why would Arizonans register to vote at an absurdly higher rate than the rest of the country? The only answer is that the state and counties are failing to adequately remove individuals who are no longer eligible, leading to bloated rolls…
If Adrian Fontes likes spending time in court, he’s going to have a fun time in 2024. In case you’ve lost count, Arizona’s Secretary of State has been sued three times over his Elections Procedures Manual (EPM) in just the last two weeks. That’s what happens when you produce one of the most radical EPMs in Arizona’s history.
At the end of January, Senate President Warren Petersen and House Speaker Ben Toma filed a lawsuit against Fontes over a variety of provisions in his EPM that violate or conflict with current election laws in our state. But the party was just getting started.
Last week, the Arizona Republican Party, the Republican National Committee, and the Yavapai County GOP also sued Fontes for his blatant attempt to rewrite election law through his EPM. And on the same day, we filed our own lawsuit against Fontes over the promulgation of certain unlawful rules set forth in his EPM.
The reality is that, in his role as Secretary of State, Adrian Fontes is supposed to provide an EPM that gives impartial direction to county recorders to ensure uniform and correct implementation of election law. Instead, he prescribed certain rules without the power to do so and moved forward with an EPM that contains several “rules” that are unconstitutional.
The Arizona Free Enterprise Club (AFEC) is suing Democrat Secretary of State Adrian Fontes due to certain rules in the latest Elections Procedures Manual (EPM) from December 2023, which the group believes are unlawful. The pro-free market nonprofit filed the legal challenge in the Superior Court of the State of Arizona for the County of Maricopa late last week.
AFEC is asking the court to strike down the provisions challenged by the lawsuit which are believed to contradict or exceed statutory authority.
“Secretary Fontes has produced one of the most radical elections procedures manuals in our state’s history,” said Scot Mussi, president of AFEC. “If the illegal provisions of this manual are allowed to stand, the integrity and transparency of state elections would continue to dissipate at the hands of leftwing ideologues.”
The complaint alleges that the 2023 EPM improperly places protected political speech at risk of criminal prosecution and has an unconstitutional chilling effect on protected political speech.
The provisions of the EPM that AFEC contends are unconstitutional include rules that: restrict observation of drop boxes and polling places, ban photography at election sites, and regulate speaking to people at election sites.
“These activities — watching drop boxes, speaking to people at election sites, and photographing activity at election sites — all constitute forms of speech,’’ the lawsuit says.
In addition to these claims, the lawsuit is challenging the 2023 EPM’s rules requiring political parties to open their primaries to federal only voters.
“The 2023 EPM also contradicts statutory requirements and exceeds statutory authority by opening the Presidential Preference Election to federal only voters, in essence, creating a new law out of whole cloth,” AFEC said in a news release.
The Free Enterprise Club details three counts for causes of action regarding the EPM, including speech, free association, and vagueness.
“We hope the court agrees with our arguments and forces the Secretary to adhere to state law,” Mussi said.
This isn’t the first lawsuit that’s been filed over the 2023 EPM. In January, Arizona’s leading legislative Republicans sued Fontes over the EPM. The Arizona Republican Party, Republican National Committee, and Yavapai County GOP filed their own lawsuit late last week.
Elizabeth Troutman is a reporter for AZ Free News. You can send her news tips using this link.
