A voter places his ballot in an election drop box in Mesa on Friday, the same day a federal judge rejected a request to block groups that have been monitoring the boxes, even though that intimidates some voters. (Photo by Ross D. Franklin/AP/Shutterstock)
WASHINGTON – A federal judge Friday refused to block groups that are monitoring ballot drop boxes, saying voters who complained of intimidation had not shown that the watchers posed a “true threat” to their voting rights.
U.S. District Judge Michael Liburdi said he struggled to find a way to help voters who are “legitimately alarmed by the observers filming” at the drop boxes, but he could not do so without violating the First Amendment rights of the box watchers.
Voto Latino and the Arizona Alliance for Retired Americans, who brought the suit against Clean Elections USA and its director, Melody Jennings, had already filed a notice by Friday evening that they plan to appeal Liburdi’s ruling to the 9th U.S. Circuit Court of Appeals.
Jennings celebrated the decision in a Truth Social post Friday, saying “the constitution won today” and that the ruling was a “step for freedom,” then urging her supporters to vote.
“If you so choose to vote at a drop box, box watchers may be at the boxes where you go,” Jennings wrote. “Wave and thank them for protecting your freedom.”
Attorneys for the voters’ groups that filed the suit declined to comment Friday, instead pointing to a statement posted to AARA’s Facebook page that said the decision was disappointing and that they still believe Jennings is breaking the law.
“The right to vote is precious and the stakes are especially high in this election,” the statement said. “We urge all older Arizonans not to be deterred and return their ballots before the deadline, or vote in person on Election Day.”
In their suit, the groups accused Jennings and Clean Elections USA of inciting voter intimidation in Maricopa County by encouraging people to watch ballot drop boxes, photographing and videotaping people as they dropped off ballots. Liburdi said the monitoring was motivated by a debunked movie that claimed ballot “mules” were stuffing drop boxes in the 2020 elections.
But the monitors in Maricopa County have led voters to file reports of intimidation – at least 10 as of Friday – with the secretary of state’s office. Those reports described groups of people sitting in lawn chairs outside the voting complex, and filming people as they drop off their ballots, accusing voters of being ballot mules and more.
In one report, a voter said that a group gathered near the drop box as he and his wife dropped off their ballots, took pictures of them and their license plate, called them a “mule” and followed their car out of the parking lot. In an Oct. 21 incident, two individuals in tactical gear and carrying firearms were monitoring that same ballot drop box outside the juvenile court building in Mesa.
The secretary of state said it has referred the reports to the Justice Department and the FBI’s Arizona field office for further investigation.
In the meantime, Voto Latino and the retirees’ group sued to stop the box watchers. They asked Liburdi for a temporary restraining order to “prohibit defendants from gathering within sight of drop boxes” and from filming, following or photographing likely voters and from “training, organizing, or directing others to do those activities.”
In his ruling, Liburdi agreed that the observers’ actions were intimidating, but there was no evidence of them publicly posting the personal information of voters that they photographed, and he could not say they had posed a threat to voters.
“Defendants have not made any statements threatening to commit acts of unlawful violence to a particular individual or group of individuals,” Liburdi wrote. “There is no evidence that Defendants have publicly posted any voter’s names, home addresses, occupations, or other personal information.”
He noted that Jennings “continuously states that her volunteers are to ‘follow laws'” in her social media posts and not to engage with voters, adding that those who did break the law would “be seen as an infiltrator intent on causing (CEUSA) harm.”
“Even if these statements are mere window dressing, a reasonable listener could not interpret Ms. Jennings’ social media pronouncements that alleged ‘mules’ will ‘shrink back into the darkness’ following her drop box initiative as true threats,” Liburdi wrote.
Liburdi agreed that the voters’ groups would face irreparable harm if any voter was frightened away from casting a ballot, but he said that has to be balanced against the First Amendment rights of the drop box watchers. In the final analysis, he said, the two cancel each other out.
“An individual’s right to vote is fundamental,” he wrote. “But so too is an individual’s right to engage in political speech, assemble peacefully and associate with others.”
Maricopa County Sheriff Paul Penzone said as much Monday, when he talked about a stepped-up law enforcement presence at the drop boxes in response to the reports of intimidation.
With less than two weeks to Election Day, Penzone said he wants reassure voters that it is safe to cast a ballot at the drop boxes. But he said that deputies will only be able to do so much, since individuals are within their rights to assemble and film at the ballot boxes as long as they stay 75 feet or more away.