9th Circuit scrutinizes new Arizona election guidelines

A Ninth Circuit panel appears split on two provisions of Arizona’s
elections procedures manual enjoined by a federal judge after
conservative groups challenged them over potential voter suppression.

In response to heightened political tensions, Democratic Secretary of State Adrian Fontes last year updated the 2023 manual, published at the end of every odd year, to address two growing concerns. 

The first section challenged in federal court
by American Encore and the America First Policy Institute, known as the
“canvass provision,” requires the secretary of state to throw out the
votes of a county that refuses to canvass its votes by its deadline if
the secretary has exhausted all other remedies.  

The provision
responds to Cochise County, whose supervisors in 2022 delayed the county
canvass until just days before the secretary of state’s deadline.

The
second addition, called the speech provision, expands the list of what
constitutes voter intimidation in Arizona, including “aggressive
behavior, such as raising one’s voice or taunting a voter or poll
worker,” and “using threatening, insulting, or offensive language to a
voter or poll worker.”

A federal judge enjoined both provisions
before the 2024 general election. Defendants Fontes and Attorney
General Kris Mayes appealed the order, arguing in Pasadena on Tuesday
that the plaintiffs showed no likelihood of harm. 

“The theory of
injury is extraordinarily speculative,” Joshua Bendor told the panel,
representing the attorney general’s office. He argued that the situation
in Cochise County, in which two Republican supervisors tried to delay
the canvass to instead platform election conspiracy theories, proved
that voters have nothing to worry about because the secretary was able
to enforce the canvass before reaching the point of voter
disenfranchisement. 

“The secretary’s very clear. He doesn’t want to do this,” Bendor added. 

Jonathan
Riches, attorney for the America First Policy Institute, countered that
the mandatory language of the provision deems the threat of
disenfranchisement very real and asserted that the secretary of state
had plenty of other remedies available “that are much less nuclear than
discarding the votes of entire counties.”

U.S. Circuit Judge
Salvador Mendoza Jr. used the same logic against him, suggesting there’s
no reason to assume the other available remedies wouldn’t work.

“There’s a series of assumptions we have to make to get to a violation here,” the Joe Biden appointee told Riches. 

U.S.
Circuit Judge Anthony Johnstone concurred, adding that the state
statute already requires the secretary of state to certify the statewide
votes in whatever way they can.

“What are the material
differences in the guidance not present in the state statute?” asked
Johnstone, a fellow Biden appointee. “It seems like they’re both trying
to do the same thing.”

The statute doesn’t suggest voter disenfranchisement, Riches replied.

Riches
argued that the threat of injury posed by the speech provision is just
as real, as it could result in unfair removals of voters from polling
places based on overbroad language defining intimidation. Johnstone
seemed to agree.

“This is kind of an unusual effect-based restriction of speech,” he said. 

Bendor
told the panel that the plaintiffs have no standing to challenge the
provision because they’ve outlined no conduct they intend to engage in
that would be barred by the language in the manual. 

“It’s simply a summary of what Arizona intimidation statutes say,” he said.

Bendor
added that the injunction, as written, is overbroad because it enjoins
enforcement of the entire section, including blocking the entrance,
threatening a voter or following a voter to their car, rather than just
the challenged language. 

The plaintiffs say poll workers will use
the provision to suppress voters, but Attorney General Mayes has
already disavowed criminal enforcements based on violations of the
manual. In fact, since the language was introduced in 2019 and updated
in 2023, no implementation of the plaintiffs’ interpretation of the
provision has occurred, Bendor said. 

Still, the judges asked why keep the language written as it is if the administration doesn’t intend to follow it.

“Read it the reasonable way,” Bendor answered. “Don’t reach to read it the unconstitutional way.”

The judges didn’t indicate when they will rule.