Group may monitor ballot drop boxes in Arizona, federal judge rules

A federal judge in Arizona has denied a request for an injunction and temporary restraining order against a group which has been monitoring ballot drop boxes to prevent voter fraud supposedly committed by so-called "mules."

Attorneys representing the Arizona Alliance for Retired Americans and Voto Latino had filed a lawsuit against Melody Jennings and her group, Clean Elections USA, for monitoring two ballot drop boxes in Maricopa County. The lawsuit claimed that such behavior amounted to voter intimidation and threatened the exercise of free and fair elections. However, on Friday, Judge Michael T. Liburdi of the U.S. District Court of the District of Arizona ruled that the lawsuit failed to demonstrate "any evidence that Defendants’ conduct constitutes a true threat."

Attorneys for AARA and VL had told the court that members of Clean Elections USA — some of whom have allegedly been armed and wearing masks and tactical gear — have been monitoring and filming persons who utilized the drop boxes to cast their own vote or to assist others to cast theirs. Plaintiff attorneys had argued that the presence of such ballot box monitors violated the Voting Rights Act and the Ku Klux Klan Act of 1871, both of which prohibit voter intimidation.

Liburdi disagreed.

"On this record, Defendants have not made any statements threatening to commit acts of unlawful violence to a particular individual or group of individuals. There is no evidence that Defendants have publicly posted any voter’s names, home addresses, occupations, or other personal information," he wrote.

At the hearing on Wednesday, defendants' attorney Veronica Lucero noted that there is not direct evidence that any instances of reported voter intimidation were even perpetrated by Clean Elections USA or Jennings. Even Jennings' social media posts, which plaintiffs presented as evidence of a coordinated attempt to hinder legitimate voting, always instructed drop box monitors to obey the law.

In addition to dismissing accusations of active voter intimidation, Liburdi also ruled that defendants' actions fall under First Amendment protections. "It is well-established that there is a 'First Amendment right to film matters of public interest,'" Liburdi stated. He elsewhere added that the "Court has struggled to craft a meaningful form of injunctive relief that does not violate Defendants’ First Amendment rights and those of the drop box observers."

Liburdi admitted that AARA did have standing in the case and that "the irreparable harm factor tips in favor of Plaintiffs." However, he determined that VL did not have standing, stating that "Voto Latino has not shown any other concrete or particularized injury," aside from "speculative" concerns that the group may have to divert financial resources "to develop an educational campaign on how to respond to voter intimidation."

Liburdi, appointed by former President Donald Trump and a former counsel of Republican Governor Doug Ducey, left the case open, in the event that plaintiffs collect "new evidence that Defendants have engaged in unlawful voter intimidation."

Plaintiff attorneys have already issued notice that they intend to appeal the decision. The Arizona nonprofit Activate 48 likewise sent a letter to U.S. Attorney General Merrick Garland, asking for a federal assistance with allegations of voter intimidation.