It is in direct violation of theVoting Rights Act (VRA) of 1965 and the Ku Klux Klan Act of 1871, and a body of judicial precedents dating back decades. In none of these cases did the courts rule that klansman or other voter suppressors had a first amendment right to harass and intimidate voters lawfully engaged in voting. The laws specifically prohibit this! Judge Liburdi is unfit to continue to serve on the bench.
Election law expert Rick Hasen agrees, writing An Arizona court seems to think voter intimidation isn’t voter intimidation:
The First Amendment’s free speech clause grants a lot of protection for false and odious speech. It also protects freedom of association. So if a group of people want to get together to protest the results of the 2020 election and falsely claim that Donald J. Trump won that election over Joe Biden, that is their right. Depending on the state, they may even have the right to do so openly carrying firearms. What they don’t have the right to do is to interfere with others’ constitutionally protected voting rights, such as by standing around ballot drop boxes in military gear with weapons intimidating voters against casting their ballots.
Yet, citing the First Amendment, a federal judge in Arizona last week refused to grant a preliminary injunction that would have stopped the groups of people carrying out these menacing activities in Maricopa and Yavapai counties as voters participate in the midterm election. The Ninth Circuit court of appeals is currently considering an emergency request for an order to overturn that decision and put the injunction in place. The court should grant it and protect the right to vote, recognizing that First Amendment rights do not extend to threats of violence and voter intimidation.
Since Trump fanned the false flames of voter fraud during the 2020 presidential election, conspiracies about mail-in balloting have continued to grow. A great deal of the attention has been on ballot drop boxes. These are like mailboxes that are set up by election officials in order to collect absentee ballots directly rather than having the ballots delivered through the U.S. postal service. The use of drop boxes increased dramatically during the 2020 election cycle, when many voters who feared contracting Covid-19 at a polling place chose instead to vote by absentee ballot.
There has been no indication of any widespread fraud through the use of ballot drop boxes. Nonetheless, conspiracy theories about the drop boxes have continued to circulate, fueled in part by a widely debunked film by Dinesh D’Souza, “2000 Mules,” which uses false and unproven claims to try to show drop boxes being used for fraud. Reporting by NBC News shows that ballot drop box conspiracies have flooded Trump’s social media website, Truth Social, and that has led to organizing on the ground, including in places like Arizona.
As The Associated Press reported, “Local and federal law enforcement have been alarmed by reports of people, including some who were masked and armed, watching 24-hour ballot boxes.” The article noted that “some voters have complained alleging voter intimidation after people watching the boxes took photos and videos, and followed voters.”
These reports led to two suits in federal court brought by voting rights groups. The suit currently on emergency appeal against the organizers of these drop box watchers argued that the masked and armed monitors violate a provision of the Voting Rights Act protecting against voter intimidation. The suit also claims they’re transgressing the Ku Klux Klan Act, which protects against violations of the rights of equal protection guaranteed by the Fourteenth Amendment, including intimidation against voting.
Federal district court judge Michael Lubridi, nominated to the bench by Trump, barely mentioned the fact that the protesters were armed in his refusal to grant the injunction on First Amendment grounds in the first case, though he told the plaintiffs to come back if they had more evidence of voter intimidation.
As the plaintiffs’ Ninth Circuit motion suggests, there is already plenty of evidence of such intimidation: There have been “at least seven voter intimidation complaints filed with Arizona’s secretary of state and multiple reports by voters describing armed individuals, sometimes masked and in tactical gear, surveilling drop boxes in the dark of night.” The motion also states that “state officials have sought help from federal law enforcement,” have described these intimidation teams as “vigilantes” and have expressed “deep” concern about the safety of individuals lawfully taking their early ballots to a drop box.
The suit seeks very broad relief “prohibiting Defendants from gathering within sight of drop boxes; from following, taking photos of, or otherwise recording voters or prospective voters, those assisting voters or prospective voters, or their vehicles at or around a drop box; and from training, organizing, or directing others to do those activities.”
The other suit, led by the League of Women Voters, seeks narrower relief targeted at specific intimidation tactics of the drop box watchers. It is still in front of a trial court. One analysis by University of Iowa College of Law professor Derek T. Muller predicts that the league is more likely to succeed given that it asks for more pinpointed relief targeted at “specific components of Defendants’ operation, which include time-tested and highly effective methods of voter intimidation,” including “spreading specific false information about voting and voters,” “threatening and harassing ‘monitoring’ of voter behavior” and “false public accusations of voter fraud and disclosure of personal information (‘doxing’).”
The cases present the latest clash in a society committed to both wide-open and robust political debate and free and fair elections. Although balancing free speech rights with the right to vote might be difficult in some other cases, it is not a close call here. The Arizona ballot box monitors are not simply people taking pictures of those dropping off ballots; instead, photos show armed persons in tactical gear standing where people are trying to vote. Many of us would turn around when seeing what appear to be armed vigilantes waiting in any location. In this situation, that would mean not voting, a clear demonstration of voter interference.
Even Eugene Volokh — a prominent professor who appears to support the rights of protesters to videotape others at drop boxes — expressed surprise that Lubridi did not consider more fully whether the fact that the protesters were armed changed the constitutional balance in favor of restricting their actions.
Volokh pointed to an earlier Supreme Court decision in NAACP v. Claiborne Hardware holding that the NAACP had a First Amendment right to engage in boycotts of white-owned stores that it said discriminated against African Americans, even when there was violence and threats of violence by some racial justice protesters against Black shoppers who would enter the stores. The court held that an injunction could not apply to constitutionally protected rights to boycott or protest, recognizing that an injunction is appropriate only against “unlawful conduct” like engaging in violent acts or threatening violence. The court flatly declared that “The First Amendment does not protect violence.”
As applied to this case, Claiborne Hardware means that people can protest against the use of drop boxes based upon their (wrong) belief that they are regularly used to facilitate election fraud. But an injunction is appropriate against unlawful conduct such as ballot watchers donning tactical gear and weapons that intimidate voters.
Further, as the United States Department of Justice noted in a filing in the district court the League of Women Voters case, “protecting voters’ right to cast their ballot without the specter of threats, intimidation, or coercion is fully consistent with appropriately crafted limitations on private actors’ conduct” under the First Amendment.
Violence and threats of violence in society are very worrisome. Political violence, as we recently saw against Paul Pelosi, the spouse of Speaker of the House Nancy Pelosi, D-Calif., and the 2017 attackon then-House Majority Whip Steve Scalise, R-La., is especially dangerous because it threatens not just physical harm but also the right to live in a free society where voting and public service are safe occupations. When people are intimidated out of voting or serving in office, it is a loss not just for them; our whole society suffers.
On Tuesday night, the same district court judge that denied a temporary restraining order in this first case ordered a TRO in the second case filed by the League of Women Voters (because it sought narrower relief targeted at specific intimidation tactics of the drop box watchers).
— Democracy Docket (@DemocracyDocket) November 2, 2022
🚨ALERT: Federal judge rules from the bench and prevents the right-wing group Clean Elections USA and its members from engaging in certain drop box monitoring activities in Arizona following a lawsuit brought by @lwvaz and @protctdemocracy.https://t.co/SNSObg6cnq
— Democracy Docket (@DemocracyDocket) November 2, 2022
The Associated Press reports, Judge orders armed group away from Arizona ballot drop boxes:
A federal judge on Tuesday ordered armed members of a group monitoring ballot drop boxes in Arizona to stay at least 250 feet away from the locations following complaints that people wearing masks and carrying guns were intimidating voters.
U.S. District Court Judge Michael Liburdi said members of Clean Elections USA, its leader and anyone working with them are also barred from filming or following anyone within 75 feet (23 meters) of a ballot drop box or the entrance to a building that houses one. They also cannot speak to or yell at individuals within that perimeter unless spoken to first.
The temporary restraining order was requested by the League of Women Voters of Arizona after Clean Elections USA, encouraged people to watch 24-hour ballot boxes in Maricopa County, Arizona’s most populous county.
“It is paramount that we balance the rights of the defendant to engage in their constitutionally protected First Amendment activity with the interest in the plaintiffs and in voters casting a vote free of harassment and intimidation,” Liburdi said.
Apparently he was embarrassed into making the right decision by the DOJ and election law experts telling him how wrong he was in the first case.
A second set of defendants in rural Yavapai County — groups known as the Lions of Liberty and the Yavapai County Preparedness team, who are associated with the far-right anti-government group Oath Keepers — were dismissed from the case on Monday after they pledged to stand down their operations.
Local and federal law enforcement have been alarmed by reports of people, some armed, watching 24-hour ballot boxes in the two counties as midterm elections near. Some voters have complained alleging voter intimidation after people watching the boxes took photos and videos, and followed voters.
Sheriff’s deputies have been providing security around the two outdoor drop boxes in Maricopa County after a pair of people carrying guns and wearing bulletproof vests showed up at a box in the Phoenix suburb of Mesa. The county’s other 24-hour outdoor drop box is at the Maricopa County Tabulation and Election Center in downtown Phoenix, which is now surrounded by a chain link fence.
Arizona Attorney General Mark Brnovich, a Republican, has called on voters to immediately report any intimidation to police and file a complaint with his office. [I would recommend you call the Feds because AG “Nunchucks” is a partisan hack who cannot be trusted to act. See below.] Arizona’s Secretary of State Katie Hobbs last week said her office received six cases of potential voter intimidation to the state attorney general and the U.S. Department of Justice, as well as a threatening email sent to the state elections director.
The U.S. attorney’s office in Arizona has vowed to prosecute any violations of federal law but said local police were at the “front line in efforts to ensure that all qualified voters are able to exercise their right to vote free of intimidation or other election abuses.”
The temporary order issued by Liburdi on Tuesday will be in effect for two weeks and the cooperation from the monitoring group “shall not be construed as an admission they have engaged in any of these activities,” the judge added.
The 250 foot (76 meter) perimeter around drop boxes also applies to group members wearing body armor.
Other stipulations include the groups post on their websites and social media that it is untrue that dropping off multiple ballots is illegal in all cases. Exceptions are allowed for family members, members of the same household and caregivers.
Alexander Kolodin [a candidate for the House in LD 3 – do NOT vote for this GQP voter suppression lawyer, vote for one of the write-in candidates, Georgia Flanagan orJohn Skirbst], the lead attorney for the defendants, said the League of Women Voters of Arizona ultimately failed to completely shut down the monitors’ mission. Still, the groups are not happy about the limits, since he said they could prevent them from discouraging ballot box stuffing.
“They’re worried they can’t record what happens within the 75 feet. They may have missed an opportunity to deter unlawful conduct,” Kolodin said. “Today’s order may make drop box voting a little less secure.”
This GQP voter suppression lawyer is full o’ shit. In Arizona, your early ballot can be mailed from any residential or U.S. Postal Service mailbox; there are literally millions of mailboxes in Arizona. This voter intimidation by Republican voter suppression groups at two Maricopa County drop boxes is just for show, and to create a sense of fear of intimidation in the mind of the public.Tuesday, November 1 was the Recommended last day to mail your mail-in ballot. Use a drop box, or take your ballot to the polls on Tuesday. Do not feel intimidated by these cosplay GQP voter suppression actors.
Leslie Jones for The Lincoln Project.
— The Lincoln Project (@ProjectLincoln) October 31, 2022
An Associated Press review this summer found no major fraud from the expanded use of ballot drops boxes in the 2020 election.
“Today’s U.S. District Court decision is a victory for the voters of Arizona who have the right to cast their ballots free from intimidation, threats, or coercion,” Pinny Sheoran, the League’s president, said in a statement.
This lawsuit was folded into another case before Liburdi.
On Friday, the judge said Arizona Alliance for Retired Americans failed to make its argument against Clean Elections USA. Another defendant, Voto Latino, was also removed from the case.
“Defendants have not made any statements threatening to commit acts of unlawful violence to a particular individual or group of individuals,” the judge wrote.
Liburdi concluded that “while this case certainly presents serious questions, the Court cannot craft an injunction without violating the First Amendment.” The judge is a Trump appointee and a member of the Federalist Society, a conservative legal organization.
The Department of Justice on Monday said it would join the case, saying that the actions raised serious concerns about voter intimidation.
Luke Cilano, a Lions of Liberty board member, said the organization had dropped its “Operation Drop Box” initiative last Wednesday “due to being lumped in with people who don’t adhere to the law and our rules of engagement.”
The Lions of Liberty are not associated with Clean Elections USA, he said. They are connected to the Yavapai County Preparedness Team. But he says the team was not involved in ballot box monitoring.
Similar groups around the United States have embraced a film that has been discredited called “2000 Mules” that claims people were paid to travel among drop boxes and stuff them with fraudulent ballots during the 2020 presidential vote.
There’s no evidence for the notion that a network of Democrat-associated ballot “mules” has conspired to collect and deliver ballots to drop boxes, either in the 2020 presidential vote or in the upcoming midterm elections.
If you see something, say something.
From the Arizona Secretary of State’s Office:
Reporting Voter Intimidation and Other Unlawful Conduct
If you witness voter intimidation or other unlawful conduct at the polls, we recommend the following steps:
- First, inform a poll worker at the voting location, who will work to resolve any problems and call your county election officials and/or local law enforcement if needed. However, if you or anyone else is in immediate danger, call 911 first and then inform a poll worker if possible.
- Document what you see as much as possible, including the who, what, when, and where of the incident. (But keep in mind that taking photos or video is prohibited inside the 75-foot limit of a voting location.)
You can also call 1-877-THE-VOTE. We will follow up with county election officials and federal, state, or local law enforcement entities if needed.
If you experience an incident when dropping off your ballot or going to vote, you can report it to your county elections officials or at our incident form: https://t.co/5TJGcnoEyp #TrustedInfo2022 pic.twitter.com/dfyN0tB19x
— Secretary Katie Hobbs (@SecretaryHobbs) August 2, 2022
From the U.S. Attorney For Arizona:
Assistant United States Attorney (AUSA) Sean Lokey will lead the efforts of his Office in connection with the upcoming August 2, 2022, primary election. AUSA Lokey has been appointed to serve as the District Election Officer for the District of Arizona, and in that capacity is responsible for overseeing the District’s handling of complaints of voting rights violations and election fraud in consultation with Justice Department headquarters in Washington.
AUSA Lokey will be on duty on Primary Election Day on August 2, 2022, to respond to complaints of election fraud, voting rights violations, or intimidation. AUSA Lokey can be reached by the public at the following telephone number: 602-514-7516.
The FBI will also have special agents available in the Phoenix Field Division to receive allegations of election abuses on election day. FBI in Arizona can be reached by phone at 623-466-1999 or online at https://tips.fbi.gov/.
Complaints about possible violations of the federal voting rights laws can be made directly to the Civil Rights Division in Washington, D.C. by phone at 800-253-3931 or by complaint form at https://civilrights.justice.gov/ .
In the case of a crime of violence, call 911 immediately. State and local police have primary jurisdiction over polling places.
Finally there is the completely useless Election Integrity Unit (EIU) in the Arizona Attorney General’s office. They only take online complaints, and are of no assistance.
There is also the Election Protection Hotline: