Fontes' Draft Election Rules Hit Legal Roadblock as Court Says Rules are Too 'Broad'

A federal appeals court has ruled that Arizona cannot enforce certain restrictions on speech and activities around polling places, saying Secretary of State Adrian Fontes' rules were too broad and could violate free speech rights.

The 9th U.S. Circuit Court of Appeals on Tuesday upheld a lower court decision blocking part of Arizona's 2023 Election Procedures Manual. The manual provides guidance to election officials on how to follow state election laws.

Two nonprofit groups and one individual had challenged two sections of the manual in court. The first section, called the Speech Provision, tried to explain Arizona's voter intimidation laws and listed examples of banned behavior, including using offensive language or acting in ways that might intimidate or harass voters.

The second section, known as the Canvass Provision, describes the consequences for counties that fail to submit their election results on time. It said Adrian Fontes must certify statewide results by a legal deadline, even if that means leaving out late counties.

The Lawsuit

The challengers filed their lawsuit in federal district court, arguing that both provisions violated constitutional rights. They said the speech rules would discourage protected political speech, and the certification rules could prevent people's votes from counting if their county missed a deadline.

The district court initially blocked both provisions. On appeal, the 9th Circuit agreed to keep stopping the speech rules but allowed the certification provision to stand.

Regarding the speech restrictions, the appeals court found the rules were written too broadly. 

Fontes' rule banned any activity around polling places "by a person with the intent or effect of threatening, harassing, intimidating, or coercing voters inside or outside the 75-foot limit at a voting location is prohibited."

The judges noted this language went much further than existing state law, which only applies to actions done "knowingly" and only restricts activity within 75 feet of polling locations. 

Rules Were 'Broad'

The federal judges wrote that Fontes' rules were so broad they "could conceivably reach any speech related to elections and politics."

The court said the challengers had the right to sue because they planned to engage in political speech that might be covered by these rules and could face enforcement action.

However, the appeals court disagreed with the lower court about the certification provision. The judges said the challengers couldn't prove there was a real risk that any county would actually fail to certify its results on time, so they removed the block on that rule.

This decision will affect Arizona's next Election Procedures Manual. While Fontes has already released a draft version for the 2026 elections, he must revise the rules before they get approval from the attorney general and the governor by the end of this year.

Reports have informed that Fontes' office did not comment on the ruling, and it's not clear if they will appeal the decision to a higher court.