A federal judge late Friday blocked Secretary of State Adrian Fontes from refusing to include a county’s vote in the statewide totals if the local supervisors failed to certify the results, calling what he proposed “utterly without precedent” and comparing it to a nuclear weapon.

In an often strongly worded ruling, U.S. District Court Judge Michael Liburdi, a nominee of former President Trump, acknowledged there has been at least one attempt in the past by a board of supervisors to delay certification. And that action threatened to hold up the formal canvass of all the votes through the entire state and even change the outcome of some races.

But Liburdi said the solution Fontes has incorporated in the Elections Procedures Manual – allowing him to skip over those uncertified votes simply to finalize the state results – would unfairly and illegally disenfranchise the voters who had cast their ballots.

“If the right to vote is the right of qualified voters within a state to cast their ballots and have them counted, then the canvass provision imposes the most severe burden: state-sanctioned disenfranchisement,” the judge wrote.

Consider, Liburdi said, what would happen if Maricopa County supervisors balked.

Under the rules Fontes enacted in the manual, he would be permitted to certify the state results without including those votes. And that, the judge said, would mean all 2.4 million votes from the residents would not count when the state finalized the results – meaning the results would be determined based on the votes only from the other 14 counties.

What’s worse, Liburdi said, is that none of this would be the fault of the disenfranchised voters.

“A registered voter in Arizona may perfectly comply with all voting requirements and obligations but nonetheless have her vote excluded based on the mal- or nonfeasance of public officials,” he wrote.

Nor was Liburdi convinced by assurances from Fontes that the provision was meant largely to spur county supervisors to comply with the law and likely would never be enforced.

“A nuclear weapon does not become any less dangerous simply because a world leader avows never to unleash it,” the judge said. And he said the same is true of claims by Fontes never to follow through.

“The canvass provision imposes a nuclear-level burden on voting rights,” Liburdi said. “It is a weapon in the secretary’s arsenal that he has discretion to use should the circumstances present themselves – a weapon that does not become any less threatening simply because the secretary is self-professedly ‘committed’ to not pulling the trigger.”

Strictly speaking, Liburdi’s order does not void the provision of the manual. That will take a full-blown trial. But it does preclude Fontes from enforcing or relying on that provision this year.

The challengers in this lawsuit, two groups with ties to Republican interests, also convinced Liburdi to bar Fontes from enforcing another provision dealing with what speech and actions are permitted in and around voting locations.

That language would prohibit “any activity by a person with the intent or effect of threatening, harassing, intimidating, or coercing voters … inside or outside the 75-foot limit at a voting location.”

Liburdi said there’s no problem in general with barring intentional threats, intimidation or coercion. The issue, he said, turns on the fact it also covers actions that have the effect of doing so, regardless of the intent of the person.

Then there’s the fact that, as written, the manual does not govern only actions inside the 75-foot perimeter in which certain activities are forbidden by statute, like campaigning or taking pictures.

“Thus, speech that a listener finds too loud, too offensive or too insolent – potentially anywhere in Arizona – is prohibited,” Liburdi wrote. “But it has long been established that speech may not be prohibited because it concerns subjects offending our sensibilities.”

And then there’s the fact that the prohibition is solely based on the reaction of the listener.

“Plaintiffs do not have fair notice of what speech is prohibited,” Liburdi wrote. And then there’s the fact that the provision actually could be enforced by a poll worker who would have the ability to have someone ejected from a polling place, even before they cast their own ballot.

“Moreover, the rule prohibits ‘offensive’ or ‘insulting’ speech without defining what categories of speech rise to the requisite level of offense or insult,” he continued. “Without any limitation, election officials and poll workers have nearly unfettered discretion in categorizing and regulating a voter’s speech.”

And that, said Liburdi, increases the likelihood the provision would be arbitrarily enforced.

In some ways, this part of the order is not a surprise.

Maricopa County Superior Court Judge Jennifer Ryan-Touhill issued her own order last month barring Fontes from enforcing what she said were restrictions on free speech, something she said covered everything from what people can wear to the polls to a prohibition on anything that has the effect of harassing a voter. She said the provisions in the state’s Elections Procedures Manual “are greater than necessary, vague, overbroad, and serves as a universal prohibition on conduct.”

But it is the part of the ruling overriding Fontes’ ability to complete the statewide canvass without all the votes that could have more far-reaching implications.

The issue is not academic.

In 2022, Cochise County supervisors balked at doing the local canvass, with the two Republicans on the three-member board saying they had unanswered questions. It took a court order to get that canvass done, freeing up Democrat Katie Hobbs, then the secretary of state, to certify the results of the election, which declared her governor, with Fontes, also a Democrat, named secretary of state.

The results of neither of those races would have changed with or without the 47,284 Cochise votes.

But if the final canvass was without those votes, Republican Tom Horne would have lost the race for state schools chief to Democratic incumbent Kathy Hoffman, and Democrat Kirsten Engel would have more votes than Republican Juan Ciscomani for the Congressional District 6 seat.

Liburdi, in the new ruling, noted it never came to that with one of the Republicans on the board, Peggy Judd, under a court order, finally agreeing to vote with Democrat Ann English to certify the results — and make Horne and Ciscomani the winners of their races.

Another remedy, said Liburdi, would be filing criminal charges against errant board members. That finally occurred against Judd and Republican Tom Crosby, albeit after the election was certified. They are now awaiting trial on felony charges of election interference.

And the judge said there are other options, like seeking a declaration from a judge as to the correct vote counts or appointing an auditor or special master to certify vote totals if a county fails to do so.

“Under any of these alternatives, the state would achieve finality in election results by the statutory deadline, and in a manner that ensures all voters are enfranchised,” Liburdi said.

Fontes press aide Aaron Thacker said the office “will do a deeper dive on the decision and determine what we will do next if we need to do anything at all.”

The lawsuit was brought by American Encore, an Arizona-based group run by Sean Noble that bills itself as promoting free enterprise policies.

It also has funneled money into political campaigns in Arizona, including helping Republican Doug Ducey win his first gubernatorial race in 2014.

Also filing suit was America First Policy Institute. It was formed in 2021 by allies of Donald Trump in the wake of his 2020 loss in the presidential race to support free market and Trump policies.