Mayes: Pima County GOP can’t cite a single time the rules they want blocked were misused

Arizona’s Democratic attorney general and secretary of state are duking it out with Pima County Republicans, who want a U.S. District Court judge to block portions of the state’s elections rulebook ahead of the July 21 primary. 

The Oversight Project, on behalf of the Pima County Republican Party, argued in a May 1 complaint that multiple provisions in the state’s 2025 Elections Procedures Manual violate the U.S. Constitution. The elections rulebook, which is revised every two years, was written by Democratic Secretary of State Adrian Fontes and approved by Gov. Katie Hobbs and Attorney General Kris Mayes, also Democrats.

In mid-May, the Oversight Project asked the court to issue a preliminary injunction, blocking the state from enforcing the provisions of the EPM — portions of which carry the force of law — that it claims are unconstitutional. 

Those provisions include:

• Allowing election officials to remove from a polling place or report to law enforcement anyone who impersonates a law enforcement officer or is “wearing clothing, uniforms or official-looking apparel intended to deter, intimidate, or harass voters.”
• Banning audible electioneering outside of the 75-foot perimeter of polling places where it is expressly prohibited if the electioneering can be heard at the polling place door
• Allowing elections officials to kick political party election observers out of polling places if they raise “repeated frivolous voter challenges to poll workers without any good faith basis.”

Neal Cornett, director of state litigation for the Oversight Project, wrote in the complaint that the first provision might cause law enforcement officers “to rightfully fear removal for merely wearing their uniforms if they vote on their way to work,” while the provision aimed at election observers could cause them “to refrain from raising challenges for fear of removal from the vicinity of the election.” 

In a June 5 response, Mayes and Fontes dismissed Cornett’s argument that any provision in the EPM would impact law enforcement officers’ ability to vote in uniform. 

“It is unclear how anything in the 2025 EPM or the underlying statutes would prevent uniformed officers from exercising their right to vote simply because they show up to vote in uniform,” Mayes wrote.

Fontes and Mayes asked the court not to block the EPM provisions, saying that they merely explain existing state statute, and did not expand upon it. Mayes wrote that if Cornett and the Pima County Republican Party believe those provisions violate the U.S. Constitution, they should challenge the underlying law instead of the rulebook explaining the law to elections officials. 

The Oversight Project wrote in its initial complaint that the provision regarding clothing and uniforms was overly vague, leaving too much up to the discretion of individual election workers.

“How are election officials to determine what uniforms or clothing would be intended to deter, intimidate, or harass voters?” Cornett wrote. “How are they to determine what is intimidating to any individual voter as opposed to a subgroup of voters? How are they to reconcile what is offensive to some but agreeable to others? How could they be expected to separate their own personal and political biases from the inquiry?”

He argued that it would also chill the free speech of voters. 

Mayes and Fontes countered that rules in the EPM only apply to election workers unless explicitly stated otherwise. 

Cornett also claimed that the EPM doesn’t properly define what a frivolous voter challenge looks like, potentially putting a chilling effect on observers, and that the audibility rule was also too broad. 

“Measuring electioneering in the mind of the hearer, using subjective standards of audibility and individual views of interference with the voting process are not a valid constitutional bases (sic) for restricting speech the hearer does not want to hear,” he wrote. 

In the suit, the Oversight Project references challenges to the 2025 EPM sent to Fontes by Scot Mussi, executive director of the Arizona Free Enterprise Club and Arizona Rep. Alexander Kolodin, R-Scottsdale, before that version of the rulebook was finalized. Kolodin, an attorney, was sanctioned for bringing legal challenges to the 2020 election that weren’t backed by evidence. The lawsuit also references recommendations from a coalition of left-leaning voter advocacy groups including All Voting is Local Action and Progress Arizona. 

The Oversight Project’s website says that it works to “expose and root out corruption in government.” Its work is focused on things like former President Joe Biden’s autopen use, “transgender ideology” and Biden’s purported links to China. 

The Pima County Republican Party and its chairwoman, Kathleen Winn, are also represented in the lawsuit by state Rep. Neal Carter, a Republican from Queen Creek.

In her response, Mayes wrote that versions of the same provisions being challenged have been included in previous versions of the EPM — some of them dating back to 2014. Even so, the Pima County Republican Party couldn’t point to a single instance wherein an election official implemented those provisions in a way that violated the First Amendment. Instead of providing examples of any such instances to the Secretary of State’s Office when it asked for them, the Pima County Republican Party joined with the Oversight Project to file a lawsuit, Mayes wrote. 

Mayes and Fontes pointed to Arizona’s long history, beginning in 1913, of laws protecting voters from harassment and intimidation, and the U.S. Supreme Court’s history of backing such protections. 

“Voters have a right to cast their ballot without undue interference and people have a right to engage in political speech,” Mayes wrote, noting that, when those two rights have conflicted in the past, the U.S. Supreme Court has found in favor of voters. 

Blocking the provisions just over a month before the primary election would do more harm than good, Mayes argued, since poll worker training materials have already been produced and training has begun. 

“Enjoining guidance that helps explain how to protect voters from interference and intimidation risks creating confusion at this late hour,” she wrote. “Moreover, the fact that this Court has little time for considered reflection is a situation of Plaintiffs’ own making. The provisions they challenge have been in the EPM for years.”

A hearing in the case is set for June 16.