By Howard Fischer
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PHOENIX - A federal judge Friday refused to block the activities of those watching ballot drop boxes saying they are engaged in constitutionally protected conduct.

"Plaintiffs and many voters are legitimately alarmed by the observers filming at the county's early voting drop boxes,'' wrote Judge Michael Liburdi. And the judge said that the First Amendment rights of individuals to speak and gather do not extend to "true threats.''

But he said the groups that sought an injunction never provided him with any evidence during a court hearing earlier this week that anything being done by Clean Elections USA and Melody Jennings, its founder, reach that level.

"Defendants have not made any statements threatening to commit acts of unlawful violence to a particular individual or group of individuals,'' Liburdi wrote. "There is no evidence that defendants have publicly posted any voter's names, home addresses, occupations or other personal information.''

The judge also cited statements by Jennings that her volunteers are to "follow laws,'' admonishing them to stay outside the legally prescribed 75-foot limit and posting on social media that those affiliated with her group should not engage with or talk to individuals at drop boxes.

"Even if these statements are mere window dressing, a reasonable listener could not interpret Ms. Jennings social media pronouncement that alleged 'mules' will 'shrink back into the darkness' following her drop box initiative as true threats,'' Liburdi said.

The judge acknowledged that the 1965 Voting Rights Act also makes it illegal to "intimidate'' anyone voting or attempting to vote.

Only thing, Liburdi noted, is the statute does not define what that includes, leaving it up to the courts.

He said what is clear that intimidation can include fear of economic harm, legal repercussions, privacy violations and even surveillance. But the judge said nothing being done by Jennings or her volunteers fits that definition.

Liburdi also pointed out that the record shows that Jennings' stated objective is to deter illegal voting and illegal ballot harvesting.

"Ms. Jennings' social media posts demonstrate that she believes the presence of her volunteers alone would convey messages to these supposed 'ballot mules,' '' those who she alleges are violating state laws by depositing more ballots into drop boxes than are legally allowed. "The message is that persons who attempt to break Arizona's anti-ballot harvesting law will be exposed.''

And he said there is no evidence showing that Clean Elections USA was trying to deter legal voting.

Friday's ruling most immediately affects the activities of the group at two Maricopa County drop boxes. But it also would give the legal go-ahead to not just that group but others to engage in similar efforts as long as they act within what Liburdi said are their constitutional rights.