Judge rejects lawsuit to stop groups surveilling drop boxes, citing First Amendment protections
Extremist groups, driven by false claims of voter fraud, have allegedly been intimidating voters at drop boxes
Armed vigilantes wearing tactical gear were captured by security cameras on Oct. 21, 2022, outside Maricopa County’s drop box in Mesa. Photo via Maricopa County
A federal judge in Phoenix denied a bid to shut down efforts by a group that has been surveilling drop boxes in Maricopa County, saying that it would violate the First Amendment rights of the watchers.
Two separate lawsuits have been filed aiming to stop extremist groups from surveilling drop boxes in Maricopa and Yavapai and counties. The lawsuits sought to bar three groups — the Arizona chapter of the Oath Keepers, the Yavapai County-based Lions of Liberty, and Clean Elections USA, which is run by QAnon-linked Melody Jennings — from continuing to surveil drop boxes.
Judge Michael Liburdi, a Trump appointee and former counsel to Gov. Doug Ducey, ruled Friday in a case involving Jennings’ group that “while there are serious questions implicated, the Court cannot provide preliminary injunctive relief without infringing core constitutional rights.”
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Liburdi noted that the constitutional protection for free speech also extends to “expressive conduct.”
“The evidence in the record shows that Defendants’ objective is deterring supposed illegal voting and illegal ballot harvesting. Ms. Jennings’ social media posts demonstrate that she believes the presence of her volunteers alone would convey messages to these supposed ‘ballot mules,’” Liburdi wrote. “The message is that persons who attempt to break Arizona’s anti-ballot harvesting law will be exposed. On this record, therefore, the Court finds that a reasonable observer could interpret the conduct as conveying some sort of message, regardless of whether the message has any objective merit.”
Liburdi also argued that the drop box watchers also have a First Amendment right to film.
“The Court acknowledges that Plaintiffs and many voters are legitimately alarmed by the observers filming at the County’s early voting drop boxes,” Liburdi said, adding, “Alternatively, while this case certainly presents serious questions, the Court cannot craft an injunction without violating the First Amendment.”
The Arizona Secretary of State’s Office has already forwarded a number of complaints to state and federal prosecutors alleging that those monitoring drop boxes — who in some cases have been armed and outfitted in tactical gear — have been harassing and intimidating voters attempting to deposit their ballots.
The case accuses the groups of violating the Voting Rights Act, which prohibits voter intimidation, and the Ku Klux Klan Act of 1871, which outlaws conspiring to “prevent, by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner.” Liburdi said in Friday’s ruling that the case was unable to show anything that rose to the level of true voter intimidation.
“Further, while the irreparable harm factor tips in favor of Plaintiffs, the balance of the equities and public interest do not,” Liburdi wrote. “A preliminary injunction cannot issue on these facts, but Arizona Alliance is invited to return to this Court with any new evidence that Defendants have engaged in unlawful voter intimidation.”
The case against Jennings’ group was brought by the Arizona Alliance for Retired Americans, which said in a Wednesday hearing that senior voters were facing fear and confusion from the surveillance operations but admitted that they could not definitively prove that Jennings’ group was behind the instances of intimidation they had seen reported.
The court did find that Arizona Alliance for Retired Americans had standing to file suit in this case, that it would be harmed by the conduct due to how the group is having to divert resources away from traditional voter engagement to help “cope with the effects of drop box monitoring.”
“Moreover, the representatives from Arizona Alliance who testified at the evidentiary hearing explained that its members are fearful of and feel intimidated by the drop box observers,” Liburdi wrote.
However, the court found these findings to be too “speculative” and the court dismissed a second organization, Voto Latino, from the case due to the unclear nature of how they would be specifically affected by having to divert resources.
“Moreover, compared to Arizona Alliance, Voto Latino admittedly has a significantly greater budget to spend on its activities, and it is not clear to the Court that its potential response would even require it to reroute financial resources,” Liburdi said. “Voto Latino has not shown any other concrete or particularized injury.”
The Arizona Alliance for Retired Americans has already filed additional information with the court, citing a U.S. Supreme Court case which upheld that the 100-foot restriction for political campaigning outside of polling places was not a restriction on free speech.
“Indeed, no right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live,” attorneys for the Arizona Alliance for Retired Americans said. “Other rights, even the most basic, are illusory if the right to vote is undermined.”
On Friday, Arizona nonprofit Activate 48 sent a letter to U.S. Attorney General Merrick Garland asking the Justice Department to investigate instances of voter intimidation in the state. The coalition consists of four of Arizona’s grassroot community organizations that represent Latino and communities of color.
“Through the course of our statewide outreach, we have heard increasing concerns regarding reports of voter intimidation happening in our state,” Laura Dent, Executive Director for Activate 48, wrote in the letter. “Arizonans have a constitutional right to safe and secure elections, free from intimidation and interference.”
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