The Ninth Circuit holds that Arizona can't prohibit election activity that occurs "with the intent or effect of threatening, harassing, intimidating, or coercing voters."
I'm somewhat surprised at that result. That Arizona provision seems to me quite similar to 18 U.S.C. sect. 594, which makes it a crime to "threatens, coerces, or attempts to intimidate, threaten, or coerce, any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose." The Ninth Circuit opinion nowhere mentions Section 594, which has been repeatedly upheld by the courts. The substantive language of the Arizona provision -- e.g., "intimidate," "threaten" and "coerce" -- is basically identical to the federal provision. Hence my surprise.
Admittedly, there is one portion of the Arizona provision that seems different, and problematic. The Arizona Secretary of State has provided "examples" of conduct that might violate the Arizona law. Some of those examples seem totally fine to me; e.g., "[b]locking the entrance to a voting location," [d]isrupting voting lines, etc.
But one of those examples is "[u]sing threatening, insulting, or offensive language to a voter or poll worker." Today's Ninth Circuit opinion focuses pretty much exclusively on the "offensive" part of that example, noting -- accurately, I think -- that language that might perhaps be deemed offensive may still be protected by the First Amendment.
Fair enough. I see why one might accordingly enjoin enforcement of that example. But the underlying regulation, which its express focus only on conduct that threatens, harasses, intimates or coerces voters, nonetheless seems fine to me. Personally, I don't think that "offensive" language in fact constitutes a threat or intimidation or coercion, so don't see how it would qualify in the first place. But given the example, why not just sever the unconstitutional example -- which isn't even actually part of the regulation, but rather merely an "example" of ostensibly prohibited conduct?
This is also relevant, I think, to the standing inquiry. I'm sympathetic to the panel's view that there's a potential chill on speech. But given the absence of anyone actually being charged -- or even threatened -- with using "offensive" speech (pursuant to an "example" promulgated by the Secretary of State), is it really plausible that someone's going to be prosecuted for, say, wearing a shirt that says "Israel has a right to exist" (which is one of the hypotheticals in the opinion)? Doesn't seem likely, particularly given the text of the actual regulation. I strongly doubt anyone, in any universe, would think that such a piece of clothing would "threaten" or "intimate" a voter.
So, yeah, the "offensive" example seems wrong (and impermissible), but I'm not sure that enjoining the entire regulation seems appropriate for one erroneous exemplar.
