9th Circuit Rules AZ SOS Fontes Cannot Criminalize Speech at Polling Places

The 9th Circuit Court of Appeals unanimously ruled on Tuesday that Arizona Secretary of State Adrian Fontes (D) cannot enforce his Election Procedures manual (EPM) provision that bans “offensive or insulting speech” at polling places, finding the language vague, broad, lacking criminal intent, and in violation of the first amendment.

“The language in the EPM ‘would outlaw any activity that has the effect of harassing, intimidating or coercing voters, regardless of whether that was the intent Further, the three judge panel found that the simple threat of prosecution could ‘chill’ individuals from engaging in otherwise legal political activity,” the Arizona Capital Times reported.

According to their report:

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.

“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,” Judge Kim Wardlaw wrote for the unanimous three-judge panel. “And it is inevitable that some political and election speech — matters of public concern — will have the effect of being offensive to someone.”

“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,” Judge Wardlaw noted.

In summary, the court unanimously found that the EPM’s language and provisions exceeded the language found in state law that criminalizes speech of a person who “knowingly” use language that would compel or intimidate voters.

Fontes’ drafted EPM has come under fire from Arizona legislators who cite similar concerns, claiming that Fontes is rewriting Arizona election law to fit Fontes’ partisan agenda.

Earlier this month, The Globe reported:

Arizona’s Republican legislative leaders, Speaker of the House Steve Montenegro and Senate President Warren Petersen, issued a direct warning to Democrat Secretary of State Adrian Fontes on Wednesday that the draft 2025 Elections Procedures Manual (EPM) issued by his office contains “several provisions” that “override state law and repeat overreaches already struck down by Arizona courts.”

In a joint letter and corresponding press releases, Speaker Montenegro and Senate President Petersen offered a harsh rebuke to Fontes, whose efforts to modify the EPM have resulted in a litany of legal challenges against the Secretary since at least January 2024. from the Arizona GOP, Republican legislative leaders, as well as groups like the Arizona Free Enterprise Club.

“The Elections Procedures Manual cannot be used as a vehicle to rewrite Arizona law,” President Petersen said in a statement. “This draft is filled with provisions that go far beyond the Secretary of State’s legal authority, and if they are not corrected before submission, litigation will follow.”

“Arizona law is clear: the Legislature writes the rules for elections,” Speaker Montenegro added. “The Secretary of State does not get to invent new ones. If Fontes refuses to correct these unlawful provisions, the courts will.”

Montenegro explained, “Arizonans expect elections to be run according to the law, not rewritten to fit the Secretary of State’s partisan agenda. Secretary Fontes’ draft manual again contradicts Arizona statutes, weakens safeguards against non-citizen voting, undermines legislative authority, and even pressures election officers to surrender their constitutional rights. Such abuses erode trust in our elections and will not stand.”

Fontes’ loss at the 9th circuit marks his sixth loss in state and federal court for violating state law and the U.S. Constitution at a time, according to Judge Wardlaw, where elections have become increasingly contentious.