Drop box monitors are still in court
When U.S. District Judge Michael Liburdi granted an emergency order placing new restrictions on Arizona’s ballot drop box monitors about a week before Election Day, he temporarily limited observers’ search for ballot “mules” and voting scofflaws.
Nevertheless, the monitors — with lawn chairs, pizza, video cameras and sometimes firearms — were a defining image of the 2022 midterms in Arizona.
Inspired by the debunked film “2,000 Mules,” which states without proof that widespread ballot harvesting occurred during the 2020 presidential election, the observers took shifts dutifully photographing vehicles and people near the ballot boxes.
Occasionally, they argued with voters. And they drew attention from local and national media outlets, although they rarely answered questions from journalists about their activities.
Although Election Day has long since passed, the legal drama that the monitors’ activities sparked remains active in court, with big potential ramifications for the next time Arizonans head to the polls.
The case, attorneys say, is essentially a battle between constitutional First Amendment rights and federal voting rights laws designed to prevent intimidation and discrimination.
At its heart, it asks whether the courts should limit drop box observers’ freedoms of assembly and expression to protect voters from behavior that drew several intimidation complaints to the Arizona Secretary of State’s Office.
Until there’s an answer to that question, the issue remains in legal limbo. And it’s a very tough legal dilemma for any judge to navigate, said Stefanie Lindquist, a constitutional law expert and a professor at Arizona State University’s Sandra Day O’Connor College
of Law.
“Voting and free speech are sort of two sides of the same coin, in the sense that they really can’t survive without each other,” Lindquist said. “They’re really, really important and integral to democracy. It’s hard to say in any circumstance whether one should trump the other.”
Wait a minute ... what case is this?
As reports of people staking out ballot drop boxes began to emerge in Maricopa County, so, too, did complaints of voter intimidation — about 20 of them over a three-week period.
“It’s a personal attack,” wrote one complainant who encountered “camo clad” people while dropping off a ballot outside the county’s main election center. “They basically said they’re taking pictures looking for some fantasy BS on the voting citizenry.”
Those complaints sparked two lawsuits. One came from the Arizona Alliance of Retired Americans, a progressive grassroots organization that supports seniors’ issues, and Voto Latino, a nonprofit focused on getting out the young Latino vote. Another was brought by Protect Democracy on behalf of the League of Women Voters of Arizona, an organization formed from the movement that secured the right to vote for women.
Liburdi ruled against the Arizona Alliance of Retired Americans and Voto Latino, saying the injunction they requested was too broad and would trample the observers’ rights to speech and assembly. He also consolidated both lawsuits into one case.
Attorneys for the Arizona Alliance of Retired Americans and Voto Latino appealed Liburdi’s decision to the 9th U.S. Circuit Court of Appeals. The court ultimately found that appeal moot, effectively erasing Liburdi’s decision to not issue an emergency injunction.
But the League of Women Voters of Arizona won an emergency order from Liburdi, who said their argument offered the opportunity for a limited set of restrictions that balanced the right to vote safely with freedom of expression. The lawsuit remains active in court today.
“We’ve heard evidence of individuals being harassed and intimidated,” Liburdi said as he handed down the order from the bench. “I think the evidence was much stronger in this case, and I think it justifies this narrowly tailored
form of relief.”
In his temporary order, Liburdi banned ballot box observers affiliated with conservative group Clean Elections USA and its founder, Melody Jennings, from taking photos of voters within 75 feet of a ballot box or openly carrying guns within 250 feet of the boxes.
The order also prohibited observers associated with the group, which organized at least some of the drop box surveillance in the Phoenix area, from posting identifying images or information about voters online and making false statements about election laws until the end of the voting period.
The restrictions helped stem the tide of voter intimidation complaints, although some still came to election officials in the days after Liburdi’s order took effect.
But once Election Day came and went, restrictions on the group ceased. And in a Jan. 27 hearing, Liburdi declined a suggested preliminary injunction from lawyers with Protect Democracy, saying he viewed it as a far-reaching order when First Amendment rights were at play.
He ordered both parties in the case to return to the table for mediation.
First Amendment vs. voting rights
The parties to the lawsuit have interpreted Liburdi’s refusal of the preliminary injunction in different ways.
Attorney Alexander Kolodin, who is representing the drop box monitors, told The Arizona Republic that he views Liburdi’s decision as a victory.
“Enjoining a specific group of people with a specific ideology from filming something that Arizona law says can be filmed ... is a terrible First Amendment violation,” he said. “So I’m very glad that the judge realized that these issues were weighty, because they are important.”
The state Legislature, he said, could opt to place rules around behavior at ballot drop boxes if lawmakers felt it was appropriate. Kolodin himself is a Republican lawmaker from Scottsdale but was speaking to The Republic as a lawyer on the case.
“The Legislature has not seen fit to do that for drop boxes,” he said. “And that’s fundamentally a role for the state Legislature. It’s not a role for a federal court to make those kinds of rules.”
But Orion Danjuma, an attorney with Protect Democracy, noted that Liburdi left the door open for the League of Women Voters of Arizona to file for another temporary emergency order against Clean Elections USA and Jennings. That gives him and other attorneys the ability to act swiftly to prevent voter intimidation as long as the case continues to be litigated.
“I think the fact that there is a pending lawsuit against this individual will have some deterrent effects in and of itself,” Danjuma said. “And I hope that some of the most extreme unlawful abuses that we saw in the past will not occur partly because this individual and entity remains in active litigation over the conduct at issue.“
Both parties are currently returning to settlement negotiations, which began after the election. But Danjuma said he and others with Protect Democracy won’t accept a settlement agreement that doesn’t do something to prevent or restrict further drop box monitoring.
“The defendant stated directly that they want to engage in this conduct again, and we’ve made that very clear to the court (that) until we have a final judgment from the court or a settlement with the parties where the defendants agree to stop engaging in unlawful conduct, we are going to continue to litigate the case to ensure that voters are protected,” Danjuma said.
“At present, there is a concern that issues like this could recur in the future, and that’s why we’re continuing to litigate the case.”
Kolodin wouldn’t comment on whether his clients might accept a settlement that restricts their ability to watch over the drop boxes in the future. Still, he noted that rights enshrined in the Constitution trump federal statutes such as voter intimidation laws.
“These people are to some extent making a display and showing, ‘We really don’t like these drop boxes. We don’t trust them. We are present to monitor what we view as something that’s very prejudicial to the proper administration of elections,’” Kolodin said. “And that sends a message. I mean, you got the message. Everybody understood the message.”
While statutes always fall to constitutional provisions, Lindquist said free speech is intended to bolster democracy. The fact that some observers were dressed in tactical gear, she said, also changes the tone of the case.
“The statute is there to protect the right to vote, but the statute must bow to a constitutional right like the First Amendment,” she said. “I can’t tell you, quite honestly, whether one is more important than the other.”