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First Amendment Victory for Ballot Box Watchers in Arizona

A federal court ruled that an Arizona activist group can monitor ballot drop boxes in the state ahead of the 2022 elections.

In a decision Friday, the U.S. District Court for the District of Arizona ruled that a voter activist group called Clean Elections USA could monitor a pair of drop boxes in Maricopa County. Two liberal activist groups, the Arizona Alliance for Retired Americans and Voto Latino, sued to stop the group from monitoring the drop boxes, claiming that it was violating the Voting Rights Act and the Ku Klux Klan Act.

The two plaintiffs first argued section 11(b) of the Voting Rights Act, which states that no person, “whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote.” But the plaintiffs failed to provide evidence that Clean Elections USA actually presented a threat.

“Defendants have not made any statements threatening to commit acts of unlawful violence to a particular individual or group of individuals,” Judge Michael T. Liburdi wrote. He cited statements made in court and on social media by Clean Elections USA founder Melody Jennings, in which she repeatedly told her volunteers to follow the law and remain outside the mandatory 75-foot radius of the drop box, and not to interact with alleged “ballot mules” at the drop boxes. “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 concluded, adding later in the ruling that the Court could not “craft a meaningful form of injunctive relief that does not violate Defendants’ First Amendment rights and those of the drop box observers.”

Furthermore, “Defendants’ conduct does not fall into any traditionally recognized category of voter intimidation,” Liburdi added. “There is no evidence here that the voters using the outdoor drop boxes are primarily minorities or that they have historically been victims of targeted violence. Taken together, the Court cannot conclude that Defendants’ conduct constitutes a true threat.”

The court then turned to the Support or Advocacy clause of the Ku Klux Klan Act, which prevents “conspirac[ies] to interfere with federal elections.” The court also dismissed the activist groups’ claim on that count.

“Plaintiffs have not provided the Court with evidence that Defendants intend to prevent lawful voting,” Liburdi wrote. “Rather, Defendants stridently maintain that they seek to prevent what they perceive to be widespread illegal voting and ballot harvesting.”

“While there are serious questions implicated, the Court cannot provide preliminary injunctive relief without infringing core constitutional rights,” Liburdi wrote in his conclusion. “Further, while the irreparable harm factor tips in favor of Plaintiffs, the balance of the equities and public interest do not.”

Liburdi ordered Voto Latino to be removed from the suit, saying it did not have standing to sue. He ruled in favor of Clean Elections USA, but left the case open for future litigation, writing in his conclusion that Arizona Alliance could sue in future if they could prove that Clean Elections USA was engaging in actual voter intimidation.

18 Comments
  • Patriot1951 says:

    EVERY unconstitutional ballot dropbox should be monitored. They are in public places, and those dropping off their ballot, or their backpacks / trashbags full of ballots, have no reasonable expectation of privacy. So, go observe. You have a legal right to do so as long as you behave yourself.

  • Proud Veteran says:

    If our elections are deemed fair and honest, why does the dem party have such a problem with people wanting to watch them count ballots? Surely they have no intention of cheating!

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