WASHINGTON — A U.S. District judge in Phoenix limited the ability of a far-right group to monitor ballot drop boxes in Arizona on Tuesday by restricting photo and video, ordering members to stay at least 75 feet away from the receptacles, and barring the open carry of firearms and wearing of body armor within 250 feet.
People wearing body armor and carrying weapons have been observed in recent days photographing and filming voters and their vehicles at ballot collection boxes in multiple states after former President Donald Trump and his allies urged supporters to monitor them.
The temporary restraining order prohibits members of Clean Elections USA, which is led by Melody Jennings, a QAnon adherent who claims the 2020 election was stolen, from filming or photographing voters within 75 feet of a drop box; following people going to drop off ballots; physically being within 75 feet of the boxes or an entrance to a facility where the boxes are located; and from yelling at or speaking to voters dropping off ballots unless first engaged.
Judge Michael Liburdi also ordered Jennings and Clean Elections USA to post on social media that Arizona law allows people to drop off ballots for relatives and spouses. Jennings has repeatedly claimed that voters cannot drop off more than one ballot.
The move comes after Liburdi, a Trump appointee, on Friday refused an injunction request from the Arizona Alliance for Retired Americans to block Clean Elections USA from monitoring voters dropping off their ballots, saying that the Constitution protected the activities of citizens gathering near ballot boxes.
Liburdi said Tuesday the temporary restraining order balances the 1st Amendment and voting privacy.
“The balance is (the drop box watchers) can get their information as long as the vehicle, the individual, is outside of that 75-foot limit, but when that person is actually reaching into the car to grab a ballot or ballots or putting the ballot or ballots into the drop box, they are entitled to some greater degree of privacy from being surveilled and video recorded and photographed, somewhat similar to what they would receive in the voting location,” he said.
The League of Women Voters of Arizona, which filed the lawsuit against two far-right groups including Clean Election USA, argue that organized third-party monitoring of ballot drop boxes, such as taking video or photos of people dropping off ballots and discussing the footage on social media, amounts to illegal voter intimidation.
“From the primaries till now ... the potential voter intimidation ... at the drop boxes have advanced and has made us pivot from what we would normally do to educate the voters and tell them how to protect their vote,” Pinny Sheoran, president of the League of Women Voters of Arizona, testified Tuesday.
Earlier this week, the court combined two separate Arizona lawsuits seeking to block the Arizona chapter of the Oath Keepers and Clean Elections USA from surveilling drop boxes in Arizona’s Maricopa and Yavapai counties. A third group, Lions of Liberty, was dropped from the League of Women Voters case after agreeing to stop monitoring drop boxes.
Arizona Alliance for Retired Americans has filed an emergency appeal in the 9th Circuit.
The Justice Department argued in its filing that that it is possible to craft an injunction blocking threatening activity in a manner consistent with 1st Amendment protections of free speech and assembly.
“While the First Amendment protects expressive conduct and peaceable assembly generally, it affords no protection for threats of harm directed at voters,” the department’s lawyers wrote. “... The First Amendment does not protect individuals’ right to assemble to engage in voter intimidation or coercion. Nor does it transform an unlawful activity for one individual — voter intimidation — into a permissible activity simply because multiple individuals have assembled to engage in it.”
The use of secure ballot drop boxes increased during the COVID-19 pandemic. Attention from the far right has been fueled by the debunked film “2000 Mules,” which alleged that supposed “ballot mules” tracked by cellphone geolocation data stuffed drop boxes with fraudulent ballots during the 2020 election.
Liburdi also heard testimony Tuesday from multiple people who said they were photographed and filmed when they went to vote, including a witness whose name was not made publicly available because of concerns for his safety.
The voter from Mesa, Ariz., said he encountered a group of eight to 10 people while dropping off his and his wife’s ballots on Oct. 17. Several of the people who photographed and filmed them were armed, including one person who had a telephoto lens, the witness said, noting that his wife wanted to leave without voting.
They were concerned the group would use the lens to photograph their signatures and phone numbers, which were on the ballot envelope as required by Arizona law. The witness said he hid the ballots under his shirt while he was out of vehicle. The group shouted at him that they were “hunting mules” and followed the couple’s car as they tried to leave the parking lot, he said.
“My wife was terrified,” he said before taking several moments to compose himself.
Jennings, the leader of Clean Elections USA, boasted online that photos and video of the man went viral on social media, claiming her group had caught a “mule.” The images also appeared in news stories nationwide. The witness said only a handful of family and friends know he is the person in the images and he fears being identified and harassed.
The Department of Justice weighed in on the case Monday, arguing in a brief that monitoring drop boxes could amount to illegal voter intimidation.
Such “vigilante ballot security measures,” probably violate the federal Voting Rights Act, the Justice Department said in a “statement of interest.” Monday’s filing was the first time the Justice Department has involved itself in a case during this midterm election cycle.
The Justice Department filing states that the Voting Rights Act of 1965 provides broad legal protections for voters against coercion and intimidation throughout each step of the voting process — including depositing ballots in drop boxes provided under local or state law.
“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 department said in the filing.
