[00:00:06] Speaker 02:
Good morning, Your Honors.

[00:00:08] Speaker 02:
My name is Josh Bendor.

[00:00:09] Speaker 02:
I represent Appellants Arizona Attorney General Chris Mays and Secretary of State Adrian Fontes, joined by my colleague Karen Hartman-Tayes.

[00:00:18] Speaker 02:
I'll endeavor to reserve five minutes for a rebuttal.

[00:00:21] Speaker 02:
The district court in this case made several serious reversible errors, but I want to focus on two of them.

[00:00:29] Speaker 02:
First, the court reached to construe the voter intimidation guidance in an implausible manner that made it unconstitutional.

[00:00:37] Speaker 02:
That is the opposite of what courts are supposed to do, which is to adopt reasonable, narrowing constructions to avoid close constitutional questions.

[00:00:45] Speaker 02:
And second, the court did this implausible reaching in a case where the asserted injury was highly speculative along a very relevant dimension, and so the court had no jurisdiction.

[00:00:56] Speaker 02:
This court should reverse.

[00:00:59] Speaker 02:
I'd like to start with the voter intimidation provision, beginning with standing, then turning to the merits, and then discuss standing as the canvassing provision.

[00:01:08] Speaker 02:
on the voter intimidation guidance.

[00:01:11] Speaker 02:
To have standing for this pre-enforcement challenge, the plaintiffs needed to clearly show that they intended to say certain things, that the guidance are really prescribed them from saying those things, and that there was a credible threat of enforcement if they were to say those things.

[00:01:24] Speaker 03:
But the guidance says that so long as the speech has the effect of harassing and intimidating, I mean, isn't that just

[00:01:33] Speaker 03:
extremely broad language that would in fact tend to chill speech?

[00:01:38] Speaker 02:
It would be broad if it were read in the manner the plaintiffs read it.

[00:01:42] Speaker 02:
But in fact, in context, based on the text, based on constitutional avoidance, based on the history of enforcement, it's simply a summary of what the Arizona intimidation statutes say.

[00:01:56] Speaker 00:
So why put that additional language that's above and beyond what the statute actually says in the guidance, which has the force of law?

[00:02:05] Speaker 02:
So, Your Honor, I would say the question for an injunction is not whether a summary was precisely written or not.

[00:02:13] Speaker 00:
No, that's not the question and it's not the import of my question either.

[00:02:17] Speaker 00:
My question is the implication from putting broader language in the guidelines which have the force of law in Arizona is that there's an intent by the Secretary to make that enforceable.

[00:02:35] Speaker 00:
to enforce that in a broad manner, even if it might be only misdemeanor penalties, it still is subject to enforcement.

[00:02:48] Speaker 02:
I would disagree with that, Your Honor, respectfully, both based on the fact that the use of the passive voice is prohibited, based on the way in which other summaries are used in the elections procedures manual, which I'm happy to point to.

[00:03:01] Speaker 02:
But even if the Court has concerns there, the plaintiffs still needed to show that they intended to say something specific.

[00:03:07] Speaker 02:
And if you look closely at the declarations, there's nothing specific.

[00:03:10] Speaker 02:
in those two declarations.

[00:03:12] Speaker 04:
If we take the examples, I know that you're focused on the is prohibited followed by the citation, but the Secretary of State has endeavored to provide a long list of examples that may be considered intimidating conduct that seems to include quite a bit of speech, both

[00:03:34] Speaker 04:
as the main provision says, inside and outside the zone of a voting location.

[00:03:43] Speaker 02:
A couple of responses.

[00:03:44] Speaker 02:
I think there are a couple of pieces to that, Your Honor, so I'd like to respond to those.

[00:03:47] Speaker 02:
First of all, all of those things are examples that, depending on the context, may be intimidating.

[00:03:52] Speaker 02:
So let's take raising one's voice.

[00:03:54] Speaker 02:
Depending on what you're saying and how you're saying something, raising your voice can be relevant to whether it's intimidating.

[00:03:59] Speaker 02:
If your honor said, why don't we go to Copa Vita for breakfast in a normal voice, that wouldn't be intimidating.

[00:04:04] Speaker 02:
You screamed at your colleague that same statement.

[00:04:07] Speaker 02:
That might be intimidating.

[00:04:08] Speaker 02:
It would be an odd thing to scream, obviously.

[00:04:10] Speaker 04:
Intimidating in a constitutionally prescribable way?

[00:04:14] Speaker 04:
the voting location is different right and there's clear case law saying that the state has a strong interest in protecting the voting location including in the election okay why so on yes and so I think we that's that's one key difference is that this this guidance endeavors to reach beyond

[00:04:31] Speaker 04:
the polling location.

[00:04:34] Speaker 04:
I mean, what's your view of, does the Secretary of State have authority to provide guidance for poll workers away from voting locations?

[00:04:46] Speaker 04:
No, and we don't think this does for several reasons.

[00:04:48] Speaker 04:
Well, why does it, yeah, I mean, how does outside the 75-foot limit at a voting location and then the subsequent guidance

[00:04:58] Speaker 04:
not purport to apply anywhere in Arizona?

[00:05:03] Speaker 02:
I'd like to give three reasons for that, Your Honor.

[00:05:05] Speaker 02:
First, what?

[00:05:06] Speaker 02:
It means outside the voting location, right?

[00:05:09] Speaker 02:
So if you said, where is the Pasadena Courthouse?

[00:05:12] Speaker 02:
Oh, it's outside an Arizona voting location.

[00:05:15] Speaker 02:
Technically, that's true in that you are not inside an Arizona voting location.

[00:05:18] Speaker 02:
But that's not how normal humans use speech.

[00:05:21] Speaker 02:
I think the same is true of what's here.

[00:05:23] Speaker 02:
Outside the voting location means in the vicinity of the voting location.

[00:05:27] Speaker 02:
And that's especially true if you look at what this entire chapter is about, right?

[00:05:32] Speaker 02:
So the chapter starts conduct of elections, election day procedures.

[00:05:36] Speaker 03:
Wait, wait, wait.

[00:05:37] Speaker 03:
Outside the voting area means in the vicinity?

[00:05:40] Speaker 02:
Yes.

[00:05:41] Speaker 03:
Even though that's not the language used.

[00:05:43] Speaker 02:
Right.

[00:05:44] Speaker 02:
The point is that it's both inside the physical building, but also in Arizona law, and this is well protected under constitutional law, there's a 75-foot limit for election year, right?

[00:05:54] Speaker 02:
So it's the area outside where people may be lining up to vote or walking into the voting location from the parking lot.

[00:06:00] Speaker 02:
It's inside the building and right outside the building.

[00:06:03] Speaker 04:
But the secretary has had opportunities to correct this.

[00:06:07] Speaker 04:
You've disavowed criminal enforcement, but the secretary of state has

[00:06:13] Speaker 04:
I mean, these are regulations that govern polling workers, and so there are all sorts of consequences that could occur other than, right, particularly at the voting location where we don't want any confusion about the rules of conduct.

[00:06:25] Speaker 04:
They could occur outside of polling.

[00:06:27] Speaker 04:
And the Secretary of State has reavowed this extraordinarily broad language.

[00:06:32] Speaker 04:
Why shouldn't we take that as it means what it says?

[00:06:35] Speaker 04:
there were opportunities to put in vicinity or other zones, and as you've said, this is the way we usually want to talk about these areas, so we have bright lines, and they didn't.

[00:06:46] Speaker 04:
You've stayed with anywhere outside the 75-foot limit.

[00:06:49] Speaker 02:
Well, I would disagree, Your Honor, that the Secretary has reavowed the interpretation that the plaintiffs have urged.

[00:06:54] Speaker 04:
Well, reavowed the language that does not contain the limits that your

[00:06:58] Speaker 04:
asking us to read into it.

[00:06:59] Speaker 02:
Well, after the plaintiff sued, the secretary did not change it.

[00:07:02] Speaker 02:
That's because the election's procedures manual is on a two-year cycle.

[00:07:06] Speaker 02:
And so, yeah, you don't generally change it.

[00:07:09] Speaker 03:
And you're intending to change that in 2026.

[00:07:14] Speaker 02:
That is where the current draft stands, Your Honor.

[00:07:16] Speaker 02:
And I'm happy to talk about that further, if that would be helpful to the court.

[00:07:21] Speaker 02:
And as we said in our brief, that is simply to make clear what we think has been clear and is always been clear.

[00:07:27] Speaker 02:
But I also want to turn the court to the credible threat of enforcement.

[00:07:31] Speaker 04:
Why don't they have standing at least to just to zoom in on this question, at least where my concern is, at least to bring a Manskey-style claim, a Burson versus Freeman claim, within the 75-foot where all of this stands?

[00:07:44] Speaker 02:
I think for all three of the reasons.

[00:07:46] Speaker 02:
They haven't specified what they intend to say.

[00:07:48] Speaker 02:
If you look at the declaration, there's nothing specific.

[00:07:49] Speaker 04:
It's not a reasonable inference that these people who are engaged in Arizona politics don't intend to vote at some point?

[00:07:56] Speaker 02:
Oh, sure, they intend to vote, but what if they said they intend to do that violates even their interpretation of the guidance?

[00:08:02] Speaker 02:
They haven't specified anything.

[00:08:03] Speaker 02:
If you look at the record, they might be able to come up with examples, but it has to be in the record before the district court to justify that.

[00:08:08] Speaker 04:
They talk about things that they want to, specific things that they want to say, things that they might want to wear.

[00:08:15] Speaker 02:
Your honor, I respectfully disagree.

[00:08:17] Speaker 02:
If you look at the declarations on ER 221 and 239, they don't specify any of those things.

[00:08:24] Speaker 02:
Plaintiff Glennon says she is interested in talking about elections in politics.

[00:08:28] Speaker 02:
Plaintiff AFPI

[00:08:30] Speaker 02:
basically says similar things.

[00:08:32] Speaker 02:
It gives examples of things that it thinks could violate, but it doesn't even suggest that it intends to say those things.

[00:08:38] Speaker 02:
And all of those things are normal political speech that even on their reading wouldn't violate any of the provisions of the guidelines.

[00:08:44] Speaker 04:
Even if said in a loud voice?

[00:08:46] Speaker 02:
If screamed in a person's face, and the loud voice might be one thing, the proximity to person could be another.

[00:08:52] Speaker 02:
Maybe waving your arms would be another.

[00:08:54] Speaker 04:
But it's hard to because the effects, as Judge Mendoza pointed out, this is kind of an unusual effects-based regulation of speech.

[00:09:01] Speaker 04:
And so it doesn't really matter what the speaker's intent is for purposes of this

[00:09:10] Speaker 02:
the guidance's applicability.

[00:09:25] Speaker 02:
Not that their position is arguable, but their position is not even plausible.

[00:09:29] Speaker 02:
On the merits.

[00:09:31] Speaker 02:
And to get an injunction, they need to show a likelihood of success on the merits.

[00:09:34] Speaker 02:
Two governors, two attorneys general, two secretaries of state of different parties have approved this language.

[00:09:39] Speaker 02:
There have never been any prosecutions

[00:09:41] Speaker 02:
for anything under this that plaintiffs have pointed to.

[00:09:46] Speaker 02:
And so the idea that it's this sweeping restriction on speech is simply not plausible.

[00:09:50] Speaker 04:
Does it have to be prosecutions?

[00:09:52] Speaker 04:
What authority does the Secretary have over, with respect to elections officials, to remove someone from a polling place or otherwise infringe

[00:10:02] Speaker 04:
you know, potential rights at the polling place.

[00:10:05] Speaker 02:
Two things, Your Honor.

[00:10:06] Speaker 02:
First of all, there have never been any implementations of plaintiffs' interpretation of this provision in the record, civil, criminal, anything.

[00:10:13] Speaker 02:
Secondly, poll workers, they're subject to control of the counties who are not even parties to this case, and so it's not even clear what the injunction actually does with respect to the people.

[00:10:22] Speaker 04:
Doesn't the EPM, isn't it, its intended effect set aside whether it can piggyback on a criminal

[00:10:31] Speaker 04:
statute for prosecution but isn't its whole purpose to provide uniform guidance to elections workers across Arizona that Yes, that is its its purpose.

[00:10:43] Speaker 04:
Okay, and so Why is that again on the on the standing analysis at least?

[00:10:50] Speaker 04:
Why is that not enough?

[00:10:52] Speaker 04:
Set aside questions of prosecution for of Arizona voter who's a member of the organization or miss Glennon to

[00:11:00] Speaker 04:
be concerned about chilled speech that a poll worker would enforce this against them?

[00:11:06] Speaker 02:
Your Honor, to be clear, we haven't argued this.

[00:11:08] Speaker 02:
Out of prosecution.

[00:11:08] Speaker 02:
Yeah, we haven't argued the Secretary isn't a proper party.

[00:11:10] Speaker 02:
For standing purposes, our arguments are that they haven't specified what they intend to say.

[00:11:14] Speaker 02:
I think the record is clear on that, that they're wrong on the interpretation and that there's no credible threat of enforcement based on a very clear disavowal in the record, as well as criminal enforcement.

[00:11:27] Speaker 04:
I don't read either the Secretary of State's disavowal, which picks up on the Attorney General's disavowal.

[00:11:34] Speaker 04:
Those are disavowals of criminal prosecution.

[00:11:36] Speaker 04:
There are other potential chilling effects from having poll workers who have been given guidance.

[00:11:42] Speaker 04:
You've got volunteers there.

[00:11:44] Speaker 04:
You've got other people.

[00:11:45] Speaker 04:
They're given this.

[00:11:45] Speaker 04:
They're told to read it and to do their job.

[00:11:48] Speaker 04:
This is their guidance.

[00:11:50] Speaker 02:
This is what they're told to do I'm not aware of any civil enforcement authority the secretary has regarding County poll workers, but why isn't a poll worker?

[00:12:01] Speaker 02:
saying Step outside, please leave not enough well the question is whether there's a credible threat of enforcement and on that the court looks to the history of

[00:12:11] Speaker 04:
Well, I think we're disagreeing on enforcement.

[00:12:13] Speaker 04:
Why is enforcement not the threat that a voter could be kept out of a voting place or away from a voting place where they otherwise have the right to be but for this guidance?

[00:12:26] Speaker 02:
And I apologize, Your Honor.

[00:12:27] Speaker 02:
My point is that there is nothing in the record suggesting any version of enforcement, whether it's criminal or the kind Your Honor is talking about, that reflects

[00:12:37] Speaker 00:
How long has this provision been in?

[00:12:39] Speaker 02:
Since 2019.

[00:12:40] Speaker 00:
2019.

[00:12:41] Speaker 00:
Yes.

[00:12:41] Speaker 02:
And there's nothing that reflects the kind of enforcement based on their reading of this provision that has occurred anywhere in the history of Arizona, whether by a poll worker, a county official, a state official, none at all.

[00:12:53] Speaker 02:
No one thought it meant this.

[00:12:54] Speaker 02:
It was not controversial until basically there were some comments on this in 2023 and then they brought this lawsuit.

[00:13:01] Speaker 02:
And so it's strange to view this interpretation as this extraordinarily broad restriction on speech when we went through multiple election cycles and multiple parties endorsed this language without anyone thinking it does this very strange thing that obviously it couldn't do.

[00:13:15] Speaker 02:
I do want to turn a little bit to the canvassing provision, if I may, and there the issue is primarily outstanding.

[00:13:23] Speaker 02:
The theory of injury is extraordinarily speculative.

[00:13:27] Speaker 02:
In order for the plaintiffs to be injured, a county in which they reside would have to not cannabis comply the county's deadline, would also have to miss the secretary's deadline.

[00:13:37] Speaker 02:
The secretary would have to fail to compel them via mandamus.

[00:13:41] Speaker 02:
Other private individuals would have to fail as well.

[00:13:44] Speaker 02:
Other remedies would fail as well.

[00:13:45] Speaker 02:
Mr. Bender you don't you don't raise any argument against it on the merits right it's just based on it rises and falls on on this appeal from the PI that's correct and largely honor that's because it's basically a facial challenge right and so certainly there would be cases that would raise serious constitutional questions of applying this there might be others where like if there was a flood and all the ballots in the county were destroyed there might not be serious constitutional questions of applying this well point of standing

[00:14:08] Speaker 02:
is that the court shouldn't be forced to address a speculative situation when we're very far removed from any injury.

[00:14:14] Speaker 02:
And so our point is simply there shouldn't be an injunction on this.

[00:14:17] Speaker 02:
And the secretary's made very clear he doesn't want to have to do this.

[00:14:20] Speaker 02:
He thinks this is merely an explanation of his statutory duty.

[00:14:23] Speaker 03:
I want to go back to the intimidation arguments because I went to the record, and if you look at ER 224, they do provide examples of things that they're concerned with.

[00:14:40] Speaker 03:
There are individuals saying they list those examples.

[00:14:45] Speaker 03:
So I guess I don't understand your point that

[00:14:47] Speaker 03:
they did not intend to say any of these things.

[00:14:49] Speaker 03:
That's the training they're providing, and that's within their declaration.

[00:14:55] Speaker 02:
Two points on that, Your Honor.

[00:14:55] Speaker 02:
Sure.

[00:14:56] Speaker 02:
First of all, they just say all of the following are examples of language that AFPI is concerned might have the effect of offending someone.

[00:15:03] Speaker 02:
They don't say, here are things we intend to say.

[00:15:05] Speaker 03:
No hold on hold on but to that point though earlier in the declaration they say we train them these are the things that we're training them to do why isn't though those the those are examples of how they are training those individuals

[00:15:20] Speaker 02:
I didn't read that, Your Honor, to say that they're training them to say those things.

[00:15:25] Speaker 02:
I read that as them trying to get at some sort of Haven-style injury by saying, here's how we train people.

[00:15:33] Speaker 02:
So I understood that differently.

[00:15:35] Speaker 02:
But secondly, I would say everything there is normal political speech that's not at all prohibited by any reasonable reading of the guidance.

[00:15:42] Speaker 00:
Someone can find some of this offensive, and certainly some people have found some of this offensive,

[00:15:49] Speaker 00:
And that's the level at which they could be removed from the polling place.

[00:15:57] Speaker 00:
With some of those very examples, people have found them quite offensive to the point where they've rioted over them.

[00:16:05] Speaker 00:
So I don't know if these are the types of things.

[00:16:11] Speaker 00:
They're examples of things.

[00:16:12] Speaker 00:
Who knows what the hot button issue will be.

[00:16:16] Speaker 02:
Sure, Your Honor.

[00:16:17] Speaker 00:
The next election, you know, but these are the things that have come up in the past elections.

[00:16:21] Speaker 02:
And I apologize for speaking over, Your Honor.

[00:16:23] Speaker 02:
I didn't mean to do that.

[00:16:24] Speaker 02:
The first sentence that we've been focusing on does not talk about language that a person may find offensive.

[00:16:29] Speaker 02:
The only thing that I think they've talked about regarding offensive language is the second bullet in the list of examples.

[00:16:35] Speaker 02:
And let me just pause to say, the injunction applies to all of these examples, blocking the entrance to a voting location, disrupting voting lines, following people to their vehicles, right?

[00:16:44] Speaker 02:
So the injunction is clearly overbroad.

[00:16:46] Speaker 02:
But looking at that second bullet, which is an example of something that may be offensive, depending on the context, it's using offensive language to a voter or a poll worker.

[00:16:56] Speaker 02:
I don't read that.

[00:16:57] Speaker 02:
I don't think anyone outside this case in Arizona has read that to mean language that is offensive to a person.

[00:17:02] Speaker 02:
In the context of threatening or insulting, that's like cursing out someone.

[00:17:06] Speaker 02:
to a voter cursing out a voter or poll worker.

[00:17:09] Speaker 02:
Now, you could say, look, we could read this one of two ways.

[00:17:11] Speaker 02:
But constitutional avoidance says, OK, read it the reasonable way.

[00:17:15] Speaker 02:
Don't reach to read it the unconstitutional way.

[00:17:17] Speaker 02:
And that's what the district court did below.

[00:17:19] Speaker 02:
And that's why we think the courts are diverse.

[00:17:21] Speaker 02:
There are no other questions now.

[00:17:23] Speaker 02:
I'll reserve the balance.

[00:17:24] Speaker 00:
OK.

[00:17:25] Speaker 00:
Thank you.

[00:17:26] Speaker 00:
Thank you.

[00:17:34] Speaker 01:
Good morning, Your Honor, and may it please the Court.

[00:17:36] Speaker 01:
My name is John Riches.

[00:17:37] Speaker 01:
I'm joined by my colleague, Dallin Holt, and we represent the APLE's American First Policy Institute in Ms.

[00:17:44] Speaker 01:
Karen Glennon.

[00:17:46] Speaker 01:
The first provision that's challenged in this case threatens to disenfranchise entire counties of voters.

[00:17:52] Speaker 01:
And the second criminalizes protected speech based on subjective offense.

[00:17:58] Speaker 01:
The district court rightly enjoined both of those provisions.

[00:18:02] Speaker 01:
And I think it's important to put a fine point on the standard of review that is at issue here.

[00:18:08] Speaker 03:
This court... I think we understand the standard.

[00:18:11] Speaker 03:
Could you address the canvassing portion of this?

[00:18:14] Speaker 03:
Because I think that's an area that I... I want to make sure I understand your argument and how it is that you believe that the court is correct there.

[00:18:26] Speaker 01:
Yes, Judge Mendoza.

[00:18:28] Speaker 01:
Well, on the merits, as the court previously pointed out, the state fails to raise any defense whatsoever on the constitutional merits of this provision.

[00:18:36] Speaker 01:
Any defense is therefore waived.

[00:18:38] Speaker 01:
And I think that's probably telling.

[00:18:40] Speaker 01:
This is so patently unconstitutional.

[00:18:42] Speaker 01:
The district court referred to it as a nuclear bomb that is probably unprecedented in the history of the United States.

[00:18:49] Speaker 00:
How concrete and real is it?

[00:18:53] Speaker 01:
Very, Your Honor.

[00:18:54] Speaker 01:
And here's why.

[00:18:57] Speaker 01:
Appellees have to show that there is a threat of disenfranchisement.

[00:19:04] Speaker 01:
There's a line of cases that say voters have standing to bring those sorts of cases.

[00:19:09] Speaker 01:
Burdick is probably the best one.

[00:19:12] Speaker 01:
But in this case,

[00:19:14] Speaker 01:
There's a credible threat of enforcement for three reasons.

[00:19:17] Speaker 01:
The first is the language is mandatory.

[00:19:20] Speaker 01:
It says that the secretary must proceed with the state canvas without including the votes of the missing county must proceed.

[00:19:28] Speaker 01:
I think it's also telling that that same language was promulgated by the secretary himself.

[00:19:34] Speaker 01:
that then directs the secretary to proceed with the canvas.

[00:19:39] Speaker 03:
We're not operating here in a vacuum, right?

[00:19:42] Speaker 03:
We know what happens, right?

[00:19:44] Speaker 03:
Because it happened once before.

[00:19:46] Speaker 03:
And in that case, wasn't it the case that the secretary then, in fact, sued?

[00:19:53] Speaker 03:
and the ballots were in fact counted.

[00:19:56] Speaker 03:
So why isn't the history here suggests that really there is no threat or eminent threat?

[00:20:02] Speaker 01:
Well, we think the history suggests exactly the opposite, Your Honor, for the reason Your Honor stated.

[00:20:07] Speaker 01:
So the only thing that would have to happen in order for literally an entire county's or county's votes to be not counted is exactly what happened in 2022.

[00:20:18] Speaker 01:
And in that case, you had a county board of supervisors who refused to certify the elections.

[00:20:24] Speaker 01:
And then you had the right remedy.

[00:20:26] Speaker 01:
The right remedy was the secretary going to seek mandamus relief, which in Arizona can go directly to the Arizona Supreme Court.

[00:20:34] Speaker 01:
And that's precisely what happened.

[00:20:35] Speaker 01:
The right remedy is not, we're tossing all of those votes out, which is what the EPM mandates.

[00:20:42] Speaker 04:
Was the mandamus remedy in part based on 16648, the underlying statute that you don't challenge here?

[00:20:49] Speaker 04:
So the canvassing statute that is cited in the guidance, was the mandamus remedy in part based on enforcing that statute?

[00:20:58] Speaker 01:
Correct, Your Honor, yeah.

[00:21:00] Speaker 04:
But you don't challenge that statute.

[00:21:02] Speaker 04:
To what extent do you view, we've talked a little bit on the voter intimidation side, but on the canvassing side, what are the material differences you're seeing that even if

[00:21:14] Speaker 04:
The executive had the ability to make law, which I don't think is true either at the federal or the state level.

[00:21:19] Speaker 04:
But aside from that, what are the material differences that you're worried about in the guidance that isn't present in the unchallenged state statute?

[00:21:28] Speaker 01:
The difference between when and how, Your Honor, the statute just says when the canvas must take place.

[00:21:35] Speaker 01:
And it's effectively three days after the county canvas, the statewide canvas, three days after the county canvas.

[00:21:40] Speaker 01:
The statute says nothing about it.

[00:21:42] Speaker 04:
Doesn't it say shell canvas?

[00:21:44] Speaker 01:
Correct, but that indicates the date by which the canvas must be done.

[00:21:49] Speaker 04:
But it was also the grounds then of the mandamus that the secretary sought.

[00:21:55] Speaker 04:
So it seems like they're both trying to accomplish the same thing and you haven't actually challenged the law.

[00:22:01] Speaker 01:
Well we don't think we have to because we're not challenging, in fact we do not have to, we're not challenging when the canvas must take place, we're challenging the extraordinary remedy that the secretary has imposed if the canvas does not take place by that date.

[00:22:15] Speaker 04:
So there's not a statutory obligation for the secretary of state to canvas the election, the certified copies of the official canvas received from the counties?

[00:22:28] Speaker 01:
There is that statutory obligation, but it occurs after the county canvas.

[00:22:33] Speaker 01:
And so if you had a situation like in 2022 where you had a wayward county that's refusing to certify, then the secretary still has other remedies available to him to force that certification so that he can then... But it's not just the secretary, right?

[00:22:51] Speaker 03:
Any individual.

[00:22:52] Speaker 03:
Any individual can seek mandamus, correct?

[00:22:55] Speaker 01:
Your Honor, that is true, but I think

[00:22:58] Speaker 01:
If we were to accept the proposition that the right to vote can be held hostage, and the only remedy that's available to a voter is to rush to court and say that the secretary... But counsel, then you're having to then assume that the...

[00:23:16] Speaker 03:
that the county is not going to count the votes and not going to canvas and we have to then assume that they're going to violate the law and we have to then assume that we have to, so there's a series of assumptions that we have to make in order to get to the point that there's a violation here.

[00:23:34] Speaker 01:
But your honor, those are safe assumptions, given what we know has already happened and what could very likely happen again.

[00:23:40] Speaker 01:
So you not only have the 2022 example, but in 2024, a Pinal County supervisor publicly said he will raise concerns when the supervisors meet

[00:23:52] Speaker 01:
that there's strong evidence that cheating occurred in the election.

[00:23:56] Speaker 01:
So you had in the very next election cycle yet another county official saying that he may not vote to certify the election.

[00:24:03] Speaker 01:
So we think those are quite safe assumptions based on what has already happened.

[00:24:08] Speaker 01:
But more to the point, Your Honor, the Secretary himself has refused to disavow the nullification provision and the extraordinary power that it grants

[00:24:18] Speaker 01:
his office.

[00:24:19] Speaker 01:
He was sent a request to disavow the nullification provision or the canvas provision and he said he cannot and will not disavow that.

[00:24:30] Speaker 01:
That again is not speculative.

[00:24:32] Speaker 04:
But also will take all necessary measures to ensure that the votes are counted.

[00:24:37] Speaker 01:
Well one of those necessary measures under the plain language of the EPM your honor is to discard the votes.

[00:24:44] Speaker 01:
And that's the threat he's holding over the voters of all 15 counties in the state of Arizona.

[00:24:51] Speaker 04:
And I think that's the real nub of it.

[00:24:52] Speaker 04:
But if you don't meet the deadline, then all the other votes are effectively discarded, right?

[00:24:58] Speaker 04:
At some point, the deadlines, if you can't canvas any of the other votes, and fortunately this didn't happen, but I think the secretary would say that his concern is that if you don't have votes from one county,

[00:25:12] Speaker 04:
uh... and the rest of the counties are on the line particularly with respect to federal uh... election deadlines all of those other votes are canceled

[00:25:20] Speaker 01:
Well, what should happen in that situation, Judge Johnstone?

[00:25:23] Speaker 01:
Exactly what did happen.

[00:25:25] Speaker 01:
The secretary has other remedies available to him that are much more tailored, that are much less egregious, that are much less nuclear than discarding the votes of entire counties.

[00:25:37] Speaker 01:
And he did exactly what he ought to have done in that situation.

[00:25:40] Speaker 01:
He went to court.

[00:25:41] Speaker 01:
He got mandamus relief.

[00:25:43] Speaker 01:
And that order was entered such that the secretary could carry out his nondiscretionary duty to canvass the election.

[00:25:50] Speaker 01:
without having to threaten entire disenfranchisement of potentially millions of voters.

[00:25:59] Speaker 01:
Turning, Your Honor, to the speech provision.

[00:26:03] Speaker 04:
I've got a question about your framing of the speech provision.

[00:26:05] Speaker 04:
I think you led with more of a, maybe not led, but you'd raised more of a Manskey traditional claim around the polling place.

[00:26:17] Speaker 04:
in the district court.

[00:26:18] Speaker 04:
You still preserve it here.

[00:26:20] Speaker 04:
It's in your briefs here.

[00:26:22] Speaker 04:
But you open with the assertion that the secretary has created a new strict liability speech crime that has no precedent under Arizona law.

[00:26:32] Speaker 04:
Is it arguable that the Secretary of State has the legal authority in Arizona to create speech crimes?

[00:26:42] Speaker 01:
I think it is arguable, yes, Your Honor, and I think that that makes it sort of doubly troubling as to what the Secretary elected to do here.

[00:26:52] Speaker 01:
The reason it creates whole new categories of speech crimes is because, as your honor pointed out when having a discussion with my friends on the other side, this applies both inside and outside of the polling location.

[00:27:04] Speaker 01:
It eliminates the mens rea requirement that exists in state law, introduces an entirely new term, which happens to be subjective, of harassing that doesn't exist.

[00:27:14] Speaker 04:
I think, I mean, your argument must depend, must it not, on

[00:27:19] Speaker 04:
the incorporation of a statute, or are you arguing that the Secretary's dictat here can simply bring a criminal prosecution based on this guidance alone, without the intermediation of the statute?

[00:27:35] Speaker 01:
It incorporates, Your Honor, state law that makes a violation of the EPM a misdemeanor.

[00:27:41] Speaker 04:
Okay, so then it turns on that piece.

[00:27:45] Speaker 04:
There doesn't seem to be a lot of guidance in Arizona law.

[00:27:48] Speaker 04:
I think that you both cited a few cases about how tight that connection is.

[00:27:52] Speaker 04:
So, you know, I think in typical states, in terms of a Secretary of State, there's the list of, there's laws that generally govern election processes.

[00:28:03] Speaker 04:
Messing with those might be one sort of crime here, a misdemeanor under the statute, and then separate voter intimidation protections, which would be the more obvious place for this to fall.

[00:28:15] Speaker 04:
But your argument is that it's bootstrapped into the general election processes provision?

[00:28:22] Speaker 04:
What is that, 346?

[00:28:25] Speaker 04:
Yeah.

[00:28:27] Speaker 01:
So state law itself makes a violation of the EPM, its own separate standalone criminal misdemeanor.

[00:28:38] Speaker 01:
So that's part of the problem here.

[00:28:43] Speaker 04:
You haven't named any of the county attorneys as defendants here.

[00:28:49] Speaker 04:
The Isaacson case has come up, but in Isaacson, isn't it distinguishable because in that case, the plaintiffs had named the county attorneys and so that, of course, they did have standing where there isn't a disavowal to restrain the county attorney defendants, but you haven't named them here.

[00:29:08] Speaker 01:
Well, I think that goes to the chill aspect of this, Your Honor.

[00:29:13] Speaker 01:
And by the way, there's no disavowal from the Secretary of State, although the AG gave something of a convenient disavowal for its litigation position.

[00:29:22] Speaker 04:
I think the Secretary of State can be read as picking up on the criminal side.

[00:29:26] Speaker 01:
So not dealing with people's ability to be removed.

[00:29:32] Speaker 04:
But how can you assert from a chill from the county attorneys?

[00:29:36] Speaker 04:
I mean, the typical thing often in constitutional

[00:29:39] Speaker 04:
litigation and election litigation.

[00:29:40] Speaker 04:
You've got lots of officials.

[00:29:42] Speaker 04:
Put them in the caption.

[00:29:43] Speaker 01:
Well, as to why they weren't in the caption, I don't know, Your Honor, but it does not remove the fact that county attorneys have independent enforcement authority here.

[00:29:54] Speaker 01:
So if I'm a speaker, if I'm your average Arizona citizen,

[00:29:58] Speaker 01:
And I want to express a political opinion that might be controversial.

[00:30:03] Speaker 01:
The threat that both the Attorney General and all 15 county attorneys can prosecute me is still out there.

[00:30:10] Speaker 01:
And as we have unrebutted evidence from the declaration, that is currently injuring our clients.

[00:30:17] Speaker 01:
They are currently self-censoring as a result of this potential for criminal liability, both from the state and from the counties.

[00:30:24] Speaker 03:
What do you say to their argument that when we said 75 feet or outside of that 75 feet area, that that was not what they intended and that's not how they're intending to enforce that argument?

[00:30:40] Speaker 01:
So I found it interesting that one of my friend's primary arguments was that this was an implausible reading.

[00:30:50] Speaker 01:
That's the plain language.

[00:30:51] Speaker 00:
You know, one of his arguments was that your clients could come to the passing of courthouse and make their offensive comments.

[00:30:59] Speaker 00:
And that would not be enforced or enforceable.

[00:31:04] Speaker 01:
The problem is that is not, that's not what the language says.

[00:31:08] Speaker 00:
Yeah, they haven't limited what outside means.

[00:31:13] Speaker 00:
Correct.

[00:31:14] Speaker 01:
And really the obligation on this court, as the United States Supreme Court has said in Stevens and every other case, is not to rewrite the law.

[00:31:23] Speaker 01:
It's the state here that would ask this court to rewrite the plain language of these speech restrictions.

[00:31:31] Speaker 01:
The language says precisely what it says.

[00:31:33] Speaker 04:
I guess the problem is that this is, to the extent it is law, it's only law via maybe arguable, certainly contested,

[00:31:44] Speaker 04:
intermediation of the election process misdemeanor.

[00:31:48] Speaker 04:
So with respect to just the guidance, and this is something I pursued a little bit with your friend, what do you understand the potential, if we take criminal, setting aside criminal enforcement, what are your claims with respect to poll workers and the kind of heartland of the people who are governed by this?

[00:32:12] Speaker 04:
This is an executive action, not a legislative action, so what it's doing is governing, generally providing guidance for elections workers, people in that system.

[00:32:23] Speaker 04:
So what are your claims about chill or potential enforcement, not by prosecutors, but by polling workers?

[00:32:32] Speaker 01:
And of course, Your Honor, we do disagree with the characterization that this is just direction to poll workers.

[00:32:38] Speaker 01:
Once again, the plain language says any person and then goes on to spell out what the behavior is that doesn't just apply to poll workers.

[00:32:44] Speaker 04:
Well, right.

[00:32:45] Speaker 04:
In other words, like much executive guidance, it indirectly governs private conduct.

[00:32:50] Speaker 04:
But its direct governance is saying, you government officials, to provide for uniform enforcement of these laws,

[00:32:56] Speaker 04:
We want you to enforce the voter intimidation law or other processes by these ways.

[00:33:02] Speaker 04:
So if we assume that it's only polling workers that might provide a threat, what does that enforcement look like for your clients?

[00:33:09] Speaker 01:
Potentially removal from the voting pool, from the voting polling stations, the inability of individuals to express themselves.

[00:33:16] Speaker 04:
Is there any authority that you'd cite in the EPM or elsewhere that confers that?

[00:33:23] Speaker 01:
Yeah, the EPM has provisions in terms of what happens when there's disruptive conduct out of polling places and it directs election officials as to what to do.

[00:33:41] Speaker 01:
In the provision itself, Your Honor, and this is at D, so ER 217D, the officer in charge of elections has a responsibility to train poll workers and establish policies to prevent the conduct that's then listed.

[00:33:56] Speaker 01:
So this is the guidance that's given to all the election officials that are then

[00:34:01] Speaker 01:
supervising these sorts of elections.

[00:34:04] Speaker 01:
Interestingly, as to our plaintiffs specifically, AFPI, it's unrebutted evidence in their declarations, this is a paragraph four of their declaration, that one of their primary functions is to train poll workers.

[00:34:18] Speaker 04:
Well, you bring kind of a, you make some Manskey type allegations about what's going on, speech at the polling place, but as

[00:34:27] Speaker 04:
the passage that Judge Mendoza spoke about, your declarations aren't entirely specific about that claim.

[00:34:36] Speaker 04:
I think it would be fair to say that you read the guidance very broadly and the speech that you're claiming might be chilled is equally broad.

[00:34:46] Speaker 04:
Could you point us to something that would support if we might be worried mostly about what's going on at the polling place, best support standing on that ground?

[00:34:56] Speaker 01:
Sure.

[00:34:56] Speaker 01:
And again, I think the most important piece of both declarations, again, which is unrebutted, is the chill that has already occurred.

[00:35:03] Speaker 01:
Both of our clients have testified that as a result of these speech restrictions, they are not engaging in speech they would otherwise engage in.

[00:35:12] Speaker 01:
That's at both ER 221 and then in the Glennon Declaration.

[00:35:19] Speaker 04:
But even under dry house, we need a little more than that.

[00:35:21] Speaker 04:
So what's the nexus here to?

[00:35:24] Speaker 04:
What's going to happen on the ground under this guidance there are speech?

[00:35:27] Speaker 01:
Additionally and Judge Mendoza made this observation in his in his discussion as well.

[00:35:34] Speaker 01:
There's a whole list of activities at er 220 224 that That afpi says would fall under but where are those happening?

[00:35:46] Speaker 04:
And how what's the time place and manner of those activities are they happening at home as someone looking at?

[00:35:51] Speaker 04:
something that's upsetting on the phone and yelling at their screen.

[00:35:54] Speaker 04:
Do we have enough there?

[00:35:56] Speaker 03:
And to add to his question, where in your declaration does it say that those are the things that were intended to be said by the declarant?

[00:36:05] Speaker 01:
So the declarant doesn't have an obligation to come up with everything the declarant might possibly say at some point when he or she is engaging in run-of-the-mill political speech.

[00:36:20] Speaker 01:
The declarants have testified in an unrebutted way that they themselves have already self-censored by not saying things they would otherwise say.

[00:36:30] Speaker 01:
And under this Court's decision in Protect Marriage,

[00:36:34] Speaker 01:
A credible threat exists when a plaintiff self-censors due to the threatened enforcement.

[00:36:41] Speaker 01:
And there is simply unrebutted evidence of the self-censorship that's already occurred, that's continuing to occur, and that will occur if these provisions, if the injunction is lifted against these provisions.

[00:36:55] Speaker 00:
Could the declarations have been more specific about things that they intended to say?

[00:37:04] Speaker 01:
Your Honor, there's no obligation, again, in a situation like this where we're dealing with core political speech, we can't ask a speaker, tell me the hundreds or thousands of things you may say that somebody else may perceive as subjectively offensive or harassing.

[00:37:25] Speaker 00:
So what I am imagining is that beyond the 75-foot line,

[00:37:33] Speaker 00:
your clients may want to stand there silently or not wearing t-shirts, hats, whatever, colors that speak to the issues that will be presented in the next election, whatever those may be.

[00:37:52] Speaker 00:
You can't really be specific about because we don't really know what's going to be the

[00:37:58] Speaker 00:
hot button issue at the next election.

[00:38:00] Speaker 01:
That's a very good point, Your Honor.

[00:38:02] Speaker 01:
And if you use the examples that are in the declaration, such as Israel has a right to exist, or maybe an Israeli Defense Forces t-shirt that somebody might find offensive or harassing, that would fall within the plain language of the guidelines.

[00:38:20] Speaker 01:
And our clients have testified that that has caused them to self-censor as a result.

[00:38:27] Speaker 01:
I see that my time is up, Your Honor, if there's no more questions.

[00:38:31] Speaker 00:
All right.

[00:38:31] Speaker 00:
Thank you, Counsel.

[00:38:34] Speaker 00:
Thank you.

[00:38:34] Speaker 00:
Mr. Bendor?

[00:38:35] Speaker 02:
Thank you, Your Honor.

[00:38:39] Speaker 02:
I want to start with speech provision.

[00:38:42] Speaker 02:
Under the Arizona statute, violation of the EPM is a misdemeanor only if it's a violation of a rule.

[00:38:47] Speaker 02:
So the question is, is this a rule?

[00:38:49] Speaker 02:
And I want to give another example from the same chapter of the EPM.

[00:38:53] Speaker 02:
And this is ER 386.

[00:38:56] Speaker 02:
And that's under the checking voter identification section.

[00:39:00] Speaker 02:
And it says, voters are required to prove identity at the polling voting location before receiving a ballot on election day.

[00:39:07] Speaker 02:
And it cites the relevant statute.

[00:39:09] Speaker 02:
That's clearly a summary of existing Arizona law.

[00:39:12] Speaker 02:
And if a voter fails to provide identification, they're not prosecuted for a misdemeanor.

[00:39:17] Speaker 02:
As the section later explains, they get a conditional provisional ballot, and they can try to come back and show their ID later.

[00:39:22] Speaker 02:
So that shows you sometimes the EPM is just summarizing other law.

[00:39:26] Speaker 02:
And that's what this section is.

[00:39:28] Speaker 02:
I would add also, the EPM is for elections workers.

[00:39:31] Speaker 02:
That's what the very first page says.

[00:39:34] Speaker 02:
And there's not a single provision there that I would read to impose a direct obligation on the members of the general public.

[00:39:43] Speaker 02:
And so I think courts should impose some sort of a clear statement rule before the government, the secretary of state, or the attorney general were going to assert

[00:39:51] Speaker 02:
that something in the BPM does what in our view it never does.

[00:39:55] Speaker 04:
Why isn't it enough for standing purposes at least that the connection of an election worker following this guidance could do something to chill the plaintiff's speech?

[00:40:08] Speaker 02:
I mean, I don't think it's enough because I don't think it's even arguably prescribed and because I don't think they've been specific and there's no credible threat of enforcement.

[00:40:15] Speaker 02:
But again, even if you get there, to get an injunction, they need more than standing.

[00:40:18] Speaker 02:
They need to show that our view of this language isn't even plausible in order for the district not to... Okay, let's make it easier to say that... Let's assume the guidance was clearly unconstitutional.

[00:40:35] Speaker 04:
Would it be a defense to either standing or the

[00:40:37] Speaker 04:
merits on an injunction to simply say, well, the Secretary of State has put some guidance out there, but who knows?

[00:40:44] Speaker 04:
No one follows that.

[00:40:45] Speaker 04:
No one's going to get hurt.

[00:40:46] Speaker 04:
No one's going to be prevented from voting, even though the Secretary of State is telling poll place workers to enforce it.

[00:40:55] Speaker 02:
I think it'd be much closer.

[00:40:56] Speaker 02:
I think under this court's case law and Supreme Court case law, you still have to look at do they have a specific plan to violate it for these plaintiffs, for the court to have jurisdiction over a dispute between these plaintiffs and these defendants.

[00:41:06] Speaker 02:
You'd also need to have a credible threat of enforcement.

[00:41:08] Speaker 02:
That may be different in the facts your honor lays out, but I don't think that's what we have here.

[00:41:12] Speaker 02:
At last, I just want to point to the section of the EPM this is in.

[00:41:15] Speaker 02:
Within Chapter 9, it's Section 3, which is entitled Preserving Order at the Voting Location.

[00:41:21] Speaker 02:
I think that shows what all reasonable inferences show, which is this.

[00:41:25] Speaker 02:
This is about preserving order at the voting location, not somewhere else.

[00:41:29] Speaker 02:
And for those reasons, the reasonable interpretation given by the defendants is the one this district court should have adopted.

[00:41:37] Speaker 02:
No further questions?

[00:41:39] Speaker 00:
Great.

[00:41:39] Speaker 00:
Thank you, counsel.

[00:41:41] Speaker 00:
American Encore versus Fontes is submitted and this session of the court is adjourned for today.

[00:41:48] Speaker 00:
Thank you.

[00:41:49] Speaker 00:
All rise.

[00:41:52] Speaker 00:
This court for this session stands adjourned.