DOJ weighs in on ballot drop box intimidation lawsuit

The feds told the court there is a way to balance the First Amendment with Voting Rights Act protections

By: - October 31, 2022 3:15 pm

A voter places a ballot in a drop box outside of the Maricopa County Elections Department on Aug. 2, 2022, in Phoenix. Photo by Justin Sullivan | Getty Images

The Department of Justice has given a glimpse of its legal opinion on a case seeking a temporary restraining order in federal court against a group that is surveilling drop boxes across the state. 

Two separate lawsuits have been filed aiming to stop extremist groups from surveilling drop boxes in Maricopa and Yavapai 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. 

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The judge overseeing one of the cases last week declared that the injunction being sought in one of the cases against Jennings would likely violate the First Amendment, but the case in which the DOJ is now attaching itself is seeking different injunctions and looking to present different evidence to the court. 

The case, brought by Protect Democracy on behalf of the League of Women Voters of Arizona, has now been consolidated alongside the case brought by the Arizona Alliance for Retired Americans, which is currently appealing Friday’s ruling to the 9th Circuit Court of Appeals. 

“Although lawful poll-watching activities can support democratic transparency and accountability, when private citizens form ‘ballot security forces’ and attempt to take over the State’s legitimate role of overseeing and policing elections, the risk of voter intimidation — and violating federal law — is significant,” the DOJ said in its letter to the court. 

The DOJ also expressed concern over the groups making “baseless allegations of felonious conduct” at voters who are attempting to vote, which could amount to voter intimidation, something Judge Michael Liburdi, a Trump appointee and former attorney for Gov. Doug Ducey, discussed with attorneys during Monday’s hearing. 

In one example Liburdi gave, a spouse could be asked to deliver a ballot for their spouse and, upon arriving at a drop box, be “coerced or intimidated” into thinking that they violated or are about to violate the law by dropping off someone else’s ballot. Arizona law permits members of the same household, caregivers and blood relatives to drop off ballots. 

Liburdi said that this could be a violation of the Voting Rights Act if a voter then failed to vote due to having a false belief that they were breaking the law due to people at a drop box location spreading this belief. Attorneys representing the League of Women Voters of Arizona said they have examples of Clean Elections USA’s behavior leading to exactly that result. 

While Liburdi’s Oct. 28 ruling said that groups participating in drop box surveillance had a First Amendment right to do so, the DOJ in its statement of interest argued that the court may be able to craft relief for violations of the Voting Rights Act that are still consistent with the First Amendment. 

“While the First Amendment protects expressive conduct and peaceable assembly generally, it affords no protection for threats of harm directed at voters,” the DOJ said. The DOJ argued that First Amendment protections alone do not protect a group from engaging in unlawful activity such as voter intimidation. 

“Even if those engaging in voter intimidation were protected by their right to assemble, an injunction that is narrowly tailored to further a significant or compelling interest would not run afoul of the First Amendment,” the DOJ said. “Courts have accordingly provided injunctive relief that bars individuals from taking certain intimidating actions — such as following voters, taking

pictures of license plates outside polling locations, or accusing voters of engaging in illegal activities — in order to protect voting rights, based on the particular factual circumstances of each case.” 

The First Amendment and finding a way to tailor an order that is amenable to both parties will likely be key to the case going forward and was the key point of contention and discussion Monday. 

Alexander Kolodin, a Republican candidate for the Arizona House of Representatives in District 3, said the restraining order being sought by Protect Democracy was seeking to restrain “prior speech” by his client, Jennings, who had retained him over the weekend. 

“This is core First Amendment protected activity,” Kolodin told the court, arguing that photographing and videotaping of vehicles and voters outside of the 75-foot limit in state law was within the First Amendment rights of the groups participating in it. “There is no reasonable expectation of privacy on a public street.”

Kolodin also argued that “private citizens have a greater right” to record drop box sites than the government when it was brought up that some local governments, like Yavapai County, have already begun installing cameras at drop box locations. 

He also accused Protect Democracy of trying to exhaust Jennings’ resources by bringing the suit on an expedited basis. 

Attorneys representing the League of Women Voters argued that their case is different from the case brought by the Arizona Alliance for Retired Americans, as it shows that Jennings’ group circulated personal information of voters and that threats were made against individual voters. 

Rodkangyil Orion Danjuma, an attorney for Protect Democracy, said that while he knows Liburdi is concerned about the “chilling effect” a ruling could have on the First Amendment, the requested restraining order intends to target just the activities by Clean Elections USA. 

Danjuma also responded to Kolodin’s claims, saying that the case was not about exhausting the resources of Jennings’ group at all. 

“The fear that (voters) have is palpable,” Danjuma told the court, before asking that certain evidence presented in the case be sealed to protect the identities of voters who have come forward with stories of voter intimidation. 

Kolodin objected, saying it was possible that a witness could be someone who “knows” Jennings or his clients and may have a grudge. But the judge agreed to keep the requested information and witnesses sealed. 

Although the case originally included Lions of Liberty and the Yavapai County Preparedness Team, the formal name of the Arizona Chapter of the Oath Keepers, the groups were dismissed Monday from the case they had stopped their drop box activities. 

Jim Arroyo, the leader of the YCPT, and the head of the Lions of Liberty, appeared in court Monday and said they would not resume their activities. 

Liburdi warned them that, if they decided to restart any activities, they could be subject to further action from the court, to which Arroyo responded, “Yes sir, we have stood down.” 

An evidentiary hearing is scheduled for Tuesday at noon.

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Jerod MacDonald-Evoy
Jerod MacDonald-Evoy

Reporter Jerod MacDonald-Evoy joins the Arizona Mirror from the Arizona Republic, where he spent 4 years covering everything from dark money in politics to Catholic priest sexual abuse scandals. Jerod has also won awards for his documentary films which have covered issues such as religious tolerance and surveillance technology used by police. He brings strong watchdog sensibilities and creative storytelling skills to the Arizona Mirror.

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