Lawsuit challenging AZ voting rulebook says limits on drop box monitors are unconstitutional

A lawsuit challenging Arizona's new voting rulebook alleges its limitations on monitoring ballot drop boxes and polling locations are unconstitutional.

The suit, which comes from the America First Policy Institute on behalf of the Arizona Free Enterprise Club, is the most recent from conservatives challenging Democratic Secretary of State Adrian Fontes over his Elections Procedures Manual.

That rulebook provides detailed guidance for county officials on how to run elections. Two other complaints from Republicans centered largely around voter registration and early voting provisions included in the manual.

The lawsuit is also one of several recent cases taking aim at ballot drop boxes. The boxes are used in most Arizona counties and are popular with voters, but have become the focal point of false election theories around widespread ballot harvesting and fraud.

Those conspiracies prompted groups of people to surveil drop boxes in Maricopa and Yavapai counties during the 2022 midterms. The monitors became one of the defining images of the election cycle and prompted dozens of voter intimidation complaints.

The Arizona Free Enterprise Club, a conservative grassroots organization, has previously challenged a variety of statewide voting practices in court and is currently awaiting a judge's ruling on a pivotal Yavapai County case that aims to ban unstaffed ballot drop boxes.

Their latest suit argues drop box monitors are protected by the First Amendment. It contends the new voting rulebook aims to "criminalize" their conduct. They note their organization is "interested in observing activities at drop boxes" and "conveying a message to others that the drop boxes are being watched and should be watched."

"These activities — watching drop boxes, speaking to people at election sites, and photographing activity at election sites — all constitute forms of speech," the suit reads.

The new elections manual allows county recorders and other election officials to restrict behavior at drop boxes or polling sites that could intimidate voters.

It lists examples of such conduct that include openly carrying weapons in the vicinity of a ballot drop box, intentionally following voters near drop boxes and confronting or questioning voters as they are entering or leaving a polling location.

Spokesperson Aaron Thacker said Fontes and his staff are reviewing the lawsuit, but declined further comment.

A constitutional right to monitor drop boxes?

During the 2022 midterms, a federal judge decided to place some restrictions on drop box monitors via an emergency order.

U.S. District Judge Michael Liburdi initially rejected a request for an injunction. But he said in a different lawsuit that he saw an opportunity for a limited set of restrictions that balanced the right to vote safely with freedom of expression.

His order ultimately banned ballot box observers from taking photos of voters within 75 feet of a ballot box or openly carrying guns within 250 feet of the boxes. It also prohibited observers from posting identifying images or information about voters online and making false statements about election laws until the end of the voting period.

Those limitations are largely in line with examples of voter harassment and intimidation included in the new voting rulebook.

Liburdi's restrictions helped stem the tide of voter intimidation complaints related to the monitors, although some still came to election officials in the days after his order took effect.

The rules set by the order ceased after Election Day and the case was ultimately settled on mostly private terms.

Sasha Hupka covers county government and election administration for The Arizona Republic. Do you have a tip to share on elections or voting? Reach her at sasha.hupka@arizonarepublic.com. Follow her on X, formerly Twitter: @SashaHupka. Follow her on Instagram or Threads: @sashahupkasnaps.

This article originally appeared on Arizona Republic: New suit challenges AZ voting rulebook, limits on drop box monitors