PHOENIX — The federal judge who refused last week to block the activities of those watching drop boxes agreed Monday to give another group a chance to convince him to restrain their actions.
Judge Michael Liburdi acknowledged that the arguments and evidence of voter intimidation being offered by the League of Women Voters are different than outlined by two other groups that had unsuccessfully sought an injunction. And that, he said, entitles the organization to make its case that there is a legal basis for him to issue an injunction.
But something else also has changed.
The Biden administration now is weighing in with legal arguments that back the allegations by the League that the activities of Clean Elections USA and its founder, Melody Jennings, are not constitutionally protected. Potentially more significant, the filing by Assistant Attorney General Michael Stewart contends that some of Liburdi’s conclusions last week when he denied an injunction were legally flawed.
In that ruling, the judge refused to prohibit those monitoring the drop boxes from taking photos of people as they deposited their ballots or even of their license plates. Liburdi said that as long as the watchers stayed at least 75 feet away — the zone of protection around polling places — they were doing nothing wrong.
“It is well established that there is a First Amendment right to film matters of public interest,” he wrote. And Liburdi cited a recent ruling by another federal judge in Phoenix who overturned a state law prohibiting people from taking videos within eight feet of police activity.
“Critical differences exist,” Stewart said in his legal filing Monday.
“Video recording, accosting, threatening, or accusing voters of engaging in criminal activities at ballot drop box locations is manifestly different from the public’s clearly established right to record law enforcement officers engaged in the exercise of their official duties in public places under the First Amendment,” he said.
And Stewart said the claims by Jennings that people might be depositing more ballots than allowed under Arizona law does not mean box watchers have a right to take pictures of them and their vehicles.
“Although the First Amendment generally protects the right to film matters of public interest, the mere existence of concerns with drop-box voting does not automatically transform individual acts of voting into 'matters of public interest,'" he said.
Video taping aside, Stewart said his agency takes a narrower view of the First Amendment rights of ballot-box watchers than Liburdi.
In refusing to grant the injunction, the judge acknowledged that the Constitution does not protect activities that amount to threats or intimidation.
“An individuals’ right to vote is fundamental,” Luburdi said. “But so to is an individual’s right to engage in political speech, assemble peacefully, and associate with others.”
And the judge said any injunction he would issue in that case “would likely have a chilling effect on others’ constitutionally protected activity.”
Stewart acknowledged that the 1965 Voting Rights Act does not have a specific definition of what amounts to illegal threats or intimidation. But he said that does not preclude judges from taking into account not just the specific acts but also everything else going on when deciding if an injunction is appropriate.
“Context matters,” Stewart said.
“The challenged activities cannot be viewed in isolation but instead must be considered against the background of contemporaneous events and the general climate prevailing at the time,” he wrote.
“Although voters need not actually be intimidated or threatened in order to give rise to liability under (the Voting Rights Act), whether challenged activities have created a fear or fostered concerns about threats and intimidation in the community may be probative.”
Separately attorney Orion Danjuma of the Protect Democracy Project, representing the League of Women Voters, told the judge there are differences in his request for an injunction than the one Liburdi rejected last week.
Danjuma said he wants the judge to hear from voters who actually had their personal information circulated online or that they were “subject to true threats,” evidence he said was lacking when Liburdi heard the arguments last week by attorneys for the Arizona Association of Retired Americans.
And there’s something else.
The attorneys in the earlier case did not seek to prohibit those watching the drop boxes from openly carrying firearms as long as they stayed outside that 75-foot perimeter. By contrast, Danjuma is asking Liburdi to not only bar such activity but extend that no-firearm zone out to 250 feet.
He acknowledged a Supreme Court ruling earlier this year which overturned a New York law which required a state permit to carry concealed weapons in public places.
But Danjuma said even in that case the justices said that prohibiting firearms in “sensitive places” is a “longstanding” type of regulation permitted under the Second Amendment. And he said the court included polling places, which he said includes drop boxes, in what are considered sensitive.
Danjuma also said the 250-foot request is not out of line, citing a provision in the 1776 Delaware Constitution that prohibited both firearms and armed militia within a mile of polling places 24 hours before or after an election “to prevent any violence or force being used at said elections.”
Liburdi also has to decide whether to constrain those watching the boxes from making certain false statements to those dropping off their ballots.
He noted there are allegations that these watchers are telling people who drop off more than one ballot that they are breaking the law. That is not true, Liburdi noted, as the statute does allow people to turn in not just their own ballot but also those of family members, those in the same household and those for whom they are caregivers.
But Alexander Kolodin, representing Jennings and Clean Elections USA, said that could amount to illegal prior restrain of speech.
There also is the question of what good an order against Kolodin’s clients might do, even if Jennings agrees to certain restrictions, what with Clean Elections USA not being any sort of organized entity.
“She can’t control folks that just decide to go and maybe copycat, or maybe they have their other ideas,” Liburdi acknowledged to Kolodin. “I think that’s a strong and well-taken point.”
The original lawsuit by the League of Women Voters had sought not only to enjoin the activities of Jennings and Clean Elections USA but also the Lions of Liberty and the Yavapai County Preparedness Team. But Liburdi agreed to dismiss them from the case after board members from both organizations confirmed in court Monday that they had scrapped their plans to monitor drop boxes in Yavapai County.
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