Key Highlights:

• Court said the EPM provisions were too broad, could criminalize unintended conduct

• Threat of prosecution could chill otherwise legal activity

• Judges refused to curb the authority of the Secretary of State to certify incomplete returns

Secretary of State Adrian Fontes cannot enforce his ban on offensive or insulting speech at or around polling places, the 9th Circuit Court of Appeals ruled Tuesday.

The court concluded that the provisions Fontes included in the Elections Procedures manual are so broad that they could criminalize unintentional conduct.

Judge Kim Wardlaw, writing for the unanimous three-judge panel, also said the language would outlaw any activity that has the effect of harassing, intimidating or coercing voters, regardless of whether that was the intent. And the threat of prosecution, she said, could “chill” individuals from engaging in otherwise legal political activity.

“Indeed, it is inherent in the very nature of political and electoral expressive conduct that plaintiffs may not know which political issues may become relevant or offensive at the polls,” the judge wrote. “And it is inevitable that some political and election speech — matters of public concern — will have the effect of being offensive to someone.”

But the judges punted on a separate question of whether Fontes can give himself the power to finalize election returns and declare winners even if the results from one or more counties are missing because their supervisors refused to certify the results.

Wardlaw acknowledged that such an action, if it were to occur, could disenfranchise some Arizonan voters by leaving their votes out of the final tally. And that could change the results of some elections.

She said, though, the challengers never made a clear showing that a county actually would balk at finalizing results. And that, Wardlaw wrote, meant they have no standing to contest the provision.

Central to the lawsuit is the Elections Procedures Manual.

In essence, it operates as a supplement to state election laws, spelling out procedures and policies in more detail than the statutes enacted by the Legislature. It also has the force of law, with violators subject to criminal penalties.

What Fontes put in the manual would prohibit “any activity by a person with the intent or effect of threatening, harassing, intimidating, or coercing voters” both inside the 75-foot limit at voting locations, where certain activity like campaigning already is prohibited, as well as outside that perimeter.

He even included examples of what would be banned, such as raising one’s voice or taunting a voter or poll worker, using threatening, insulting, or offensive language to voters or poll workers, and intentionally disseminating false or misleading information at voting locations, like flyers that misstate the date of the election, hours of operation or location of polling places.

That drew a challenge from American Encore, an Arizona-based group run by Sean Noble, that bills itself as promoting free enterprise policies. It has also channeled funds into Arizona’s political campaigns, notably supporting Republican Doug Ducey’s victory in his first gubernatorial race in 2014.

Also filing suit was America First Policy Institute. It was formed in 2021 by allies of Donald Trump in the wake of his 2020 loss in the presidential race to support free market and Trump policies.

The challengers said they fear the provisions enacted by Fontes could be used to restrain what they say is their normal, lawful election-related activity. That includes electioneering activities, training volunteers and poll watchers and advocating for certain government policies.

They also said that what Fontes seeks to declare illegal could extend to things like wearing an “All Lives Matter” hat, a shirt that says “Vote to Protect Unborn Children,” and a hoodie that reads “Israel has a right to exist” or “Never forget October 7th.”

Wardlaw said an injunction against enforcement is appropriate given the vagueness of what the manual would and would not make someone subject to criminal penalties.

But that’s not all. The judge stated that the provisions Fontes seeks to enforce exceed those outlined in state law.

That statute makes it illegal to “knowingly” threaten or intimidate people to compel them to vote or refrain from voting for a particular candidate or ballot measure. By contrast, she said, what Fontes proposed in his rules would criminalize any conduct that has the “effect of threatening, harassing, intimidating or coercing voters.”

What’s missing from that, the judge said, is a requirement that the person intends to do any of those things. Instead, someone could be charged with breaking the law simply because the listener felt threatened or intimidated, even if there was no intent to do any of that.

Wardlaw also took exception to Fontes’ use of the word “harassing,” a term not defined in the manual. She said that may encompass “a broad range of activities that are viewed as insulting or offensive,” activities that the First Amendment protects.

All that, the judge said, entitles challengers to an injunction because the threat of criminal prosecution for violating the provision could have a “chilling” effect on what people say, do, or wear, even outside of the 75-foot boundary.

And it’s not just the threat of criminal prosecution.

She said the language that Fontes inserted into the manual and the examples he gave were intended to be used by election officials to identify and “promptly remedy” any conduct that could be viewed as voter intimidation.

“Plaintiffs may be dissuaded from engaging in their intended speech even if there is no threat of criminal prosecution because election officials may nonetheless report them to police or remove them from the polling location based on guidance provided by the Elections Procedure Manual,” the judge wrote. And that threat, she said, is sufficient to create a risk of the provision being enforced against them, especially considering “the increasingly contentious elections our country has experienced over time.”

Tuesday’s ruling is not the last word. All it does is uphold an injunction issued by a trial court judge barring Fontes from enforcing the law. But it still gives him a chance to argue at a full-blown trial that the restrictions are both legal and necessary.

Fontes said the case is about the public’s right to “participate freely in the democratic process.”

“On one side is the voters’ freedom to assemble, to engage, and to be heard without intimidation or interference,” he said.

“On the other side is a claim to behavior that could trample those rights,” Fontes continued. “As secretary of state, I will always stand on the side of protecting voters — their voices, their rights, and the integrity of our elections.”

But attorney Andrew Gould, who represented the challengers, called it “a great victory for free speech.”

The problem with the language adopted by Fontes, he said, is it gave “too much discretion to government officials to criminalize and punish speech that they viewed as offensive or harassing.”

On the issue of canvassing election results, Gould said he was surprised that the appellate judges refused to curb the authority of the secretary of state to certify incomplete returns. He said this isn’t an academic question, saying the court was aware of what happened three years ago in Cochise County.

There, supervisors balked at doing the local canvass, with the two Republicans on the three-member board saying they had unanswered questions. It took a court order to complete the canvass, freeing up Democrat Katie Hobbs, then the secretary of state, to certify the election results, which declared her governor. Fontes, also a Democrat, was named secretary of state.

The results of neither of those races would have changed with or without the 47,284 Cochise votes.

But if the final canvass had been conducted without those votes, Republican Tom Horne would have lost the race for state schools chief to Democratic incumbent Kathy Hoffman, and Democrat Kirsten Engel would have more votes than Republican Juan Ciscomani for the Congressional District 6 seat.

Gould also said there have since been other situations where county supervisors have indicated they might try the same thing.

But Wardlaw said none of this rises to the level where she and her colleagues need to get involved.

She pointed out there are other actions — short of not counting a county’s votes — that the secretary of state can take.

That Wardlay noted, includes what happened in 2022 when a judge ordered the reluctant Cochise supervisors to comply. And she said there are real penalties for officials who refuse, pointing out that Supervisors Peggy Judd and Tom Crosby both were indicted on felony charges.

Judd entered into a plea deal; Crosby’s case is still pending.

The post 9th Circuit Court rules Fontes cannot enforce ban on offensive speech at polling places first appeared on Arizona Capitol Times.

Key Points:

• Arizona voters who never provided proof of citizenship cannot be kicked off registration rolls

• A glitch in the Motor Vehicle Division records caused the issue, not the voters’ fault

• County recorders can register applicants as “federal only” voters without proof

Tens of thousands of Arizona voters who never provided the legally required documented proof of citizenship cannot be removed from the registration rolls, Attorney General Kris Mayes concluded Monday.

According to Mayes, a glitch in how information was stored and recorded was discovered last year, where the Motor Vehicle Division was telling county recorders that people who wanted to register to vote had to have a state driver’s license that was issued after Oct. 1, 1996. That is when Arizona began requiring proof of citizenship to get a license.

But some of those on that list actually had licenses that predated the proof-of-citizenship requirement.

The Arizona Supreme Court agreed to let those in this category vote in the 2024 election. But the justices did not address what would happen going forward.

Now, Mayes is saying that county recorders cannot unilaterally cancel the registration of these individuals.

The attorney general said, even the failure of those affected to respond to notices asking for such proof cannot become the basis for removal. She said only when recorders have “affirmative evidence” that someone is not a citizen can they initiate the cancellation process.

“County recorders may take steps to inquire whether the affected voters are U.S. citizens, including by asking them to provide satisfactory evidence of citizenship,” Mayes wrote.

“If an affected voter responds by providing such evidence, that should dispel doubt,” she continued. “But if an affected voter does not respond, their mere lack of response does not, under current law, authorize the county recorder to cancel the voter’s registration, in whole or in part.”

Secretary of State Adrian Fontes, who sought the legal opinion, agrees with the decision.

“The opinion stands for the notion that these folks have a right to vote,” he told Capitol Media Services.

“And it falls to the government to prove otherwise — which is the way of every other accusation — every other denial of rights exists,” Fontes said. “So the burden has shifted back to where it belongs.”

The new opinion is the latest twist in what has been a flurry of disclosures and accusations following the discovery of the glitch by then-Maricopa County Recorder Stephen Richer.

The 1996 Arizona law requires proof of legal presence to get a driver’s license. And a 2004 law mandates proof of citizenship to register.

That 2004 law says that anyone with a post-1996 license is presumed to have furnished that proof. But anyone registering to vote for the first time after 2004, or changing registration who has one of those pre-1996 licenses, was supposed to be required to provide citizenship proof.

What happened, though, was that if someone with a pre-1996 license changed an address on a license after 1996 or got a duplicate, the coding reported to county election officials used that later revision date, showing — incorrectly — that it was a post-1996 license and, therefore, proof of citizenship had been provided.

There was a lot of finger pointing, with election officials blaming it on MVD and an aide to Gov. Katie Hobbs saying it is the fault of how the counties were making the inquiry.

The Supreme Court ruled that it would be wrong to deny those affected the right to vote, as the problem was not the fault of the voters. Justices said it would be improper to try to remove them from the rolls so close to the election when they would have little time to dig up and provide citizenship proof and be entitled to “due process” before their voting rights could be curtailed.

A spokesman for MVD said that steps have been taken to ensure the problem does not repeat itself.

All that, however, still left open the question of what happens now to those who fell victim to that glitch.

Mayes said Arizona law gives county recorders only limited powers in these situations.

What is required, she said, is for county recorders to notify new applicants for voter registration within 10 days if they do not also provide proof of citizenship. Absent that proof, said Mayes, the recorder then must reject the applications.

But the attorney general said that Proposition 200 — the 2004 requirement for proof of citizenship — only empowers a recorder to reject an application to vote in elections if the documentation is missing. What it does not do, she said, is allow recorders to go back and cancel a prior registration presumed to be invalid.

“Here, county recorders already accepted the voter registration of the applications of the affected voters long ago,” Mayes said.

“Indeed, many of the affected voters have been voting for years (and some for as many as 20 years),” she continued. “The idea of ‘rejecting’ their applications now would be like an employer ‘rejecting’ job applications of thousands of longtime employees.”

Put simply, Mayes said, a move to cancel the existing registrations would not be rejecting their applications — again, from a long time ago — but would be tantamount to “terminat(ing) their current status.”

Less clear is how many of the 4.47 million registered voters are affected.

At one point, the estimates reached as high as 300,000 and as low as 98,000. Fontes said it’s hard to come up with a precise figure.

Mayes said one part of that problem is that those licenses issued before Oct. 1, 1996, did not require proof of citizenship. But she said that some of these people may have subsequently submitted other evidence like passports, birth certificates, naturalization papers or tribal identity numbers.

“And it may be impossible to fully answer that question now, because county recorders are not required to keep documents submitted as evidence of citizenship for more than two years,” Mayes said.

Fontes said the same is true for people who have upgraded their licenses to a Real ID — a form of identification used for air travel. And to do that, he said, they had to provide citizenship proof.

It’s not just Mayes who concluded that those affected should be allowed to continue to cast ballots. Gina Swoboda, who chairs the Arizona Republican Party, said she agrees with the conclusion by the Democratic attorney general that the power of county recorders to cancel registration is limited.

“If the recorders have affirmative proof that one of the voters is a non-citizen, they may initiate a notice and cancellation process,” said Swoboda, who previously worked in the Secretary of State’s Office. “But they may not otherwise do so because of this error.”

Fontes acknowledged that, during the legal debate about 2024 election eligibility, he said he would set up a portal that would allow those who believe they were affected to find out and take some action. But he said Monday that, based on subsequent conversations with county recorders, the decision was made to let each county — the ones that have the voter registration records — to “take care of their own voters.”

None of this affects registrations going forward.

Mayes says if someone seeks to register with a driver’s license that the MVD says was initially issued prior to Oct. 1, 1996, counties can register that person to vote in all elections only if the applicant also submits evidence of citizenship.

But the National Voter Registration Act allows people to register to vote in federal elections without such documented proof. And in that case, Mayes said the applicant who doesn’t prove citizenship can be registered as a “federal only” voter who can cast ballots in presidential and congressional races.

Number of those affected (Source: Secretary of State’s Office) 

Apache – 3,684

Cochise – 5,024

Coconino – 5,596

Gila – 3,361

Greenlee – 375

La Paz – 521

Maricopa – 104,185

Mohave – 4,517

Navajo – 6,433

Pima – 31,874

Pinal – 17,835

Santa Cruz – 1,879

Yavapai – 11,339

Yuma – 4,572

Total – 202,760

The post Thousands of Arizona voters won’t be removed from rolls, AG concludes first appeared on Arizona Capitol Times.

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In elections here in Arizona and across the country, seniors have consistently been a strong voter demographic with power to sway the polls. And they’ll likely be a decisive force again in this year’s election. As political candidates prepare for the home stretch of their races up and down the ballot, they need to ensure they’re addressing the issues that motivate older populations to vote. 

For years, Arizona’s seniors have been a reliable voter bloc who consistently turn out to the polls in large numbers. In the 2020 presidential and 2022 midterm elections, nearly 80% of citizens above the age of 65 in Arizona voted. Their staunch commitment to voting ranks Arizona fourth in the nation for senior voter participation. 

With pivotal races in Arizona showing close polling, seniors will have significant influence over final election results. Seniors are looking for leaders who will enhance community safety, help them remain at home as they age, and address rising prescription drug costs. Especially as seniors get older, having affordable access to reliable health care is more crucial than ever. 

Many seniors here in Arizona and throughout the country are grappling to afford essential medications and other care services. That’s where programs like Medicare Advantage come into play, which I’ve seen first-hand throughout my career as a nurse practitioner. With wrap-around care and capped out-of-pocket expenses annually, Medicare Advantage provides high-quality health care access and peace of mind to millions of Americans, and it deserves to be protected. However, the Centers for Medicare and Medicaid Services (CMS) agency continues to make cuts to Medicare Advantage, threatening disruption to seniors’ health coverage. Seniors are rightfully expecting that the program that protects them remains protected. 

Changes to the Medicare Advantage program impact the more than 33 million Americans enrolled and could disproportionately harm our most vulnerable populations—particularly those in rural areas or those with chronic conditions who depend on the comprehensive, coordinated care that this program delivers. Seniors are increasingly worried that continuous cuts could lead to fewer options, higher out-of-pocket costs, and reduced access to their preferred providers. These worries trickle down to younger generations who worry about their parents and grandparents’ health and financial security, particularly with inflation impacting those on fixed incomes.

With their health care at stake, seniors and their loved ones are paying close attention to the candidates who will work to protect care. And seniors don’t just have a history of turning out to the polls in Arizona. In 2018 and 2022, voters over 65 across the country turned out at higher rates than any other age group, and they are likely to be a deciding factor again in 2024. Seniors account for a top voter demographic, and their voices need to be top-of-mind for Arizona’s—and the nation’s—political candidates as we approach the upcoming election. 

Dr. Heather Ross is a nurse practitioner and ASU professor. She was previously a political director for the Arizona Nurses Association. 

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