Federal Court Declares Portions of Arizona Election Manual Unconstitutional

A federal judge has intervened in Arizona’s election procedures, ruling that Secretary of State Adrian Fontes cannot exclude votes from counties that fail to certify their results. U.S. District Court Judge Michael Liburdi termed Fontes’ proposed actions as “utterly without precedent” and made a stark comparison to a nuclear weapon in terms of potential voter disenfranchisement.

In his ruling, Judge Liburdi highlighted specific past instances where county supervisors attempted to delay certification, suggesting such actions could severely disrupt the entire state’s vote canvassing process. He argued that Fontes’ proposed provisions, found in the Elections Procedures Manual, would lead to the disenfranchisement of voters who had legally cast their ballots.

“The canvass provision imposes the most severe burden: state-sanctioned disenfranchisement,” Liburdi stated emphatically. He elaborated on the dangers posed if a major county like Maricopa chose not to certify its votes, positing that over 2.4 million votes could become inconsequential in final state tallies, ultimately skewing election outcomes.

Additionally, Liburdi expressed concern that such disenfranchisement would not be the fault of voters, stating, “A registered voter in Arizona may perfectly comply with all voting requirements and obligations but nonetheless have her vote excluded based on the mal- or nonfeasance of public officials.”

The judge dismissed Fontes’ assurances that the manual’s provisions were intended primarily to encourage compliance among local supervisors, likening the potential enforcement of these rules to the dangers of a nuclear weapon. “A nuclear weapon does not become any less dangerous simply because a world leader avows never to unleash it,” he remarked, reinforcing his position against the proposed measures.

While Liburdi’s ruling does not annul the provisions outright, it prevents Fontes from applying or relying on them in this election cycle. This decision emerges amid ongoing litigation challenging several aspects of the Elections Procedures Manual, particularly provisions relating to conduct around polling locations, which were also deemed overly broad by the court.

Furthermore, Liburdi found problems with a provision restricting speech near voting areas, indicating that its vague language could lead to arbitrary enforcement. “Speech that a listener finds too loud, too offensive or too insolent – potentially anywhere in Arizona – is prohibited,” he wrote, reflecting on the potential implications for free expression during the electoral process.

The ruling signals important implications for future elections, particularly following incidents like the one in 2022, when officials in Cochise County stalled local canvassing, ultimately requiring court intervention to certify election results. If Fontes’ proposed methods had been in effect, crucial votes could have been excluded, potentially altering the final outcomes of various races.

In response, Fontes’ office has indicated it will review the ruling. The legal challenges were brought forth by groups with Republican affiliations, including American Encore and the America First Policy Institute, both known for their support of conservative policies in Arizona.