A federal judge issued an emergency order from the bench on Tuesday prohibiting Arizona ballot drop box monitors affiliated with the conservative group Clean Elections USA from photographing voters within 75 feet of a ballot box.
From now until the end of the voting period, observers associated with the group, which has organized at least some of the drop box surveillance in the Phoenix area, are also prohibited from posting identifying images or information about voters online or making false statements about election law.
It comes just days after U.S. District Judge Michael Liburdi denied a similar lawsuit filed by the Arizona Alliance for Retired Americans, a progressive grassroots organization that supports seniors’ issues, and Voto Latino, a nonprofit focused on getting out the young Latino vote.
He claimed that the legal challenge, which is being appealed to the 9th U.S. Circuit Court of Appeals, sought an overly broad injunction. He struggled to “craft a meaningful form of injunctive relief that does not violate Defendants’ First Amendment rights and those of the drop box observers,” he wrote in his decision on the case.
Protect Democracy filed this lawsuit on behalf of the League of Women Voters of Arizona, requesting a narrower injunction.
Voting rights advocates hailed the order, which will be in effect for 14 days, as a victory for Arizona voters.
“The courageous voters who came forward today provided powerful testimony about the harm that voter intimidation causes to our democracy,” said attorney Orion Danjuma in a statement. “Today’s order recognizes the importance of federal laws that ensure voters’ ability to participate in democracy without fear, striking an appropriate balance between protecting voters from intimidation and not infringing on First Amendment rights.”
The prohibitions on filming voters, according to Alexander Kolodin, an attorney for Oklahoma resident Melody Jennings, the founder of Clean Elections USA, will violate Jennings’ and observers’ First Amendment rights.
The legal wrangling comes after some voters dropping off early ballots in downtown Phoenix and Mesa complained that groups of people were filming them and photographing their license plates. Some observers have cited the debunked documentary “2,000 Mules,” which claims without evidence that widespread ballot harvesting occurred during the 2020 presidential election.
Maricopa County Sheriff Paul Penzone has been patrolling around the outdoor drop boxes as a result of the situation.
Liburdi’s order also comes in the wake of a statement of interest from the United States Department of Justice, which has received multiple voter intimidation complaints forwarded by the Arizona Secretary of State’s Office and county election officials.
“While 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,” according to the statement.
Liburdi’s bench instructions supplement an emergency order that both parties had already agreed to in frantic negotiations following a Monday status hearing.
Dropbox observers with Clean Elections USA, for example, are not allowed to enter within 75 feet of a ballot box or building containing one, follow voters to drop boxes, or engage with voters returning ballots unless they are first spoken to.
Liburdi directed Jennings to post on the Clean Elections USA website and her social media accounts that returning multiple ballots at a drop box is not always illegal.
A caregiver, family member, household member, or election official is permitted by law to return a voter’s ballot, including at drop boxes.
Libardi’s orders also prohibit monitors from openly wearing body armor or carrying guns within 250 feet of a drop box, even if the body armor or weapons are concealed.
According to the terms he read aloud in court, his order will not be interpreted as an admission of illegal activity by Jennings or her associates.
The order issued by Liburdi does not specify who will enforce its provisions. Maricopa County election officials have stated that it will not be them.
It is unclear which law enforcement agency would be in charge of enforcing the order.
