PHOENIX — Courts in Arizona are preparing for what could be a slew of last-minute Election Day lawsuits. And the state’s chief prosecutor has staff on standby should problems develop at the polls.
But the real legal problems that develop could be about those activities in the gray area, both physically and legally.
Some of the issues are quite simple.
For example, it’s a crime for anyone who is not an election worker, an official party observer or an actual voter to remain within 75 feet of polling places. Hindering or disrupting voters by force, threats, menaces or bribery also is illegal.
And it remains illegal to bring someone else’s ballot to a polling place unless it’s a member of the same household or caregiver, though the future of that law now awaits a ruling by the U.S. Supreme Court.
There are the kinds of things that come up suddenly and might demand the immediate attention of a judge.
With that in mind, Robert Brutinel, chief justice of the Arizona Supreme Court, said he has ordered the superior courts in all of the state’s 15 counties to have judges and clerks available at least during all the hours that polls are open. That is from 6 a.m. to 7 p.m.
He also said arrangements are being made for hours after that for issues that arise, like whether someone who was in line at 7 p.m. — and should, under state law, be entitled to cast a ballot — is turned away.
So what might require Election Day judicial action?
“It’s hard to say,’’ said the chief justice.
“It seems to me the most likely type of case — although we don’t have any reason to think any type of case is likely — would be a case in which something happened during the day which caused somebody to think the polls should be kept open longer than 7 o’clock so that people would have a fair opportunity to vote,’’ he said.
Brutinel said that with staff on alert, someone can go to the courthouse and get a temporary restraining order “quite quickly.’’
State courts aren’t the only ones on alert for Election Day litigation.
“We have procedures in place that we normally don’t have,’’ said Debra Lucas, clerk of the U.S. District Court for Arizona. That includes having staff and judges on standby.
That can be important as issues that arise may deal less with violations of state election laws and instead involve questions of the federal Voting Rights Act or other federal constitutional questions.
State Attorney General Mark Brnovich has prosecutors on standby with a statewide hotline for police who respond to complaints able to call lawyers who are in his Elections Integrity Unit. Spokeswoman Katie Conner they can provide legal assistance in determining whether a particular activity violates the law.
But there are gray areas of state election restrictions.
Geographically, that’s anything outside the 75-foot perimeter around all polling places. What’s permitted out there is less clear.
“While you can’t bring a firearm or a camera inside a polling center or within that 75-foot limit, outside the barrier, people do have rights,’’ said Conner. “You have a right to bear arms and a right to free speech.’’
That means people are free to hang around carrying assault-style weapons and taking pictures of others going into polling places — or even waiting on lines that may extend beyond the 75-foot marker. And they can seek to speak with those who are coming and going.
But there are lines.
“At the same time, voter intimidation is wrong and it won’t be tolerated.’’ she said.
“Everyone should feel safe exercising their voting rights,’’ Conner continued. “And if someone does feel threatened in any way they should contact local law enforcement right away.’’
So where is that line?
“It’s a balancing act,’’ she said.
“I can’t sit and I can’t tell you what would we do for a hypothetical situation,’’ Conner said. “Each instance would be different.’’
Put simply, she said attorneys would have to look at the specific facts to determine at what point someone with a camera or a gun — or even comments to would-be voters — crosses that magic line.
“Courts are prepared to handle the litigation that comes in front of them,’’ Brutinel said. But he said that anyone who wants a temporary restraining order to block certain activities will “have to make an evidentiary showing justifying it.’’
And then there’s the possibility that legal issues may not end on Election Day.
“We don’t look for the possibility of protracted litigation,’’ Brutinel said. “But we recognize that it’s possible. So, all we’re trying to do is be ready.’’