In an awesome win for conservatives and election integrity in November’s elections, a federal judge has barred liberal Arizona Democrat Secretary of State Adrian Fontes from putting into practice new rules he inserted into the state’s official procedures on the state’s canvassing process of election results. And the judge did, indeed, compare it to nukes. More on that in a minute.
Howard Fischer from Capitol Media Services has the scoop on Friday’s ruling:
PHOENIX — Calling what Secretary of State Adrian Fontes proposed “utterly without precedent” and comparing it to a nuclear weapon, a federal judge blocked him from refusing to include a county’s vote in the statewide totals if local supervisors fail to certify the election’s results.
In the ruling late Friday, U.S. District Court Judge Michael Liburdi acknowledged there was at least one attempt in the past by a board of supervisors to delay certification. That action threatened to hold up the formal canvass of all the votes throughout the state and to change the outcomes of some races.
But Liburdi said the solution Fontes incorporated in Arizona’s Elections Procedures Manual — allowing him to skip over uncertified votes simply to finalize the state results — would unfairly and illegally disenfranchise the voters who had cast their ballots.
BREAKING: Federal judge rules Secretary of State Adrian Fontes cannot enforce a new rule in his manual that says if a county doesn’t certify its results, the state will canvass without them.
Compares it to a “nuclear weapon.”
Rule is blocked until a hearing on the case. pic.twitter.com/4Q41R2Byxk
— Jen Fifield (@JenAFifield) September 28, 2024
The report continues:
Consider, Liburdi said, what would happen if supervisors balked in Maricopa County, the state’s most populous, where 2.4 million people vote.
Under the rules Fontes, an elected Democrat, enacted in the manual, he would be permitted to certify the state results without including those votes — meaning the results would be determined by votes only from the other 14 counties.
Judge Liburdi wrote:
“If the right to vote is the right of qualified voters within a state to cast their ballots and have them counted, then the canvass provision imposes the most severe burden: state-sanctioned disenfranchisement.
…
“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 best part, though, was when Liburdi chastised Fontes for his office’s lame excuse for needing the rule; Fontes claimed “the provision was meant largely to spur county supervisors to comply with the law and likely would never be enforced.” The judge wasn’t having it:
“A nuclear weapon does not become any less dangerous simply because a world leader avows never to unleash it.
…
“The canvass provision imposes a nuclear-level burden on voting rights.
“It is a weapon in the secretary’s arsenal that he has discretion to use should the circumstances present themselves — a weapon that does not become any less threatening simply because the secretary is self-professedly ‘committed’ to not pulling the trigger.”
And while the judge’s ruling does not remove the rule from the procedures, it bars him from leaning on it for 2024:
Strictly speaking, Liburdi’s order does not void the provision of the manual. That would take a full-blown trial. But it does preclude Fontes from enforcing or relying on that provision this year.
Read related:
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BREAKING: Ninth Circuit Delivers Decision on Citizenship and Voter Registration in Arizona
According to Ballotopedia, Judge Liburdi was appointed by former President Donald Trump in 2019/
There was a second provision that Liburdi blocked, which appears to be a progressive attempt to thwart election observers
The challengers in the lawsuit, two groups with ties to Republican interests, also convinced Liburdi to bar Fontes from enforcing another provision dealing with speech and actions permitted in and around voting locations.
That language would have prohibited “any activity 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.”
Liburdi found it was too broad, and likely to burden Arizonans’ First Amendment rights, writing in the decision that “there’s no problem in general with barring intentional threats, intimidation or coercion,” but “[t]he issue, he said, turns on the fact the wording also covers actions that have the effect of doing so, regardless of the intent of the person”:
He also noted that, as written, the manual governs actions beyond the 75-foot perimeter in which certain activities are forbidden by statute, such as campaigning or taking pictures.
“Thus, speech that a listener finds too loud, too offensive or too insolent — potentially anywhere in Arizona — is prohibited,” Liburdi wrote. “But it has long been established that speech may not be prohibited because it concerns subjects offending our sensibilities.”
And then there’s the fact that the prohibition would be based solely on the reaction of the listener.
“Plaintiffs do not have fair notice of what speech is prohibited,” Liburdi wrote. The provision could be enforced by a poll worker who would have the ability to eject someone from a polling place, even before they cast their ballot, he said.
“Moreover, the rule prohibits ‘offensive’ or ‘insulting’ speech without defining what categories of speech rise to the requisite level of offense or insult,” he continued. “Without any limitation, election officials and poll workers have nearly unfettered discretion in categorizing and regulating a voter’s speech.” [emphasis added]
American Encore, “an Arizona-based group run by Sean Noble that bills itself as promoting free enterprise policies,” and America First Policy Institute, filed the suit on behalf of an Arizona voter on July 8th “against Arizona’s Secretary of State Adrian Fontes (D), Attorney General Kris Mayes (D) and Gover [sic] Katie Hobbs (D) in federal court, challenging two provisions of the state’s 2023 EPM. The case against Hobbs was later dropped.”
It’s one of several lawsuits striving to uphold election integrity in states across the country:
BREAKING: Pennsylvania Court Ruling a Massive Election Integrity Win on Mail-In Ballots
RNC Battles Election Fraud in Another State, Files Suit on NC Absentee Ballot Policy That Breaks Law
Fontes’ office responded to the ruling in a statement:
Fontes press aide Aaron Thacker said the office “will do a deeper dive on the decision and determine what we will do next if we need to do anything at all.”
You can read the full order here.
As this is a developing story, RedState will provide updates as warranted.
