PRIMARY ELECTION

Prosecutor sees fine line between free speech, voter intimidation

Posted 8/1/22

PHOENIX - The top federal prosecutor in Arizona says his office will be watching Tuesday's election to ensure there are no violations of the right of individuals to vote.

But Gary Restaino, the …

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PRIMARY ELECTION

Prosecutor sees fine line between free speech, voter intimidation

Posted

PHOENIX - The top federal prosecutor in Arizona says his office will be watching Tuesday's election to ensure there are no violations of the right of individuals to vote.

But Gary Restaino, the U.S. Attorney for Arizona, acknowledged there's a fine line between people exercising their First Amendment rights outside of polling places and what would constitute illegal voter intimidation.

"You know it when you see it,'' he told Capitol Media Services. And, for the most part, Restaino said what generally occurs around polling places, from taking videos of people going to vote to even hanging around with visible sidearms, doesn't cross the line.

He said, though, that it can, with factors ranging from how people dress to what they say.

Restaino said anyone who believes illegal activity is taking place should call law enforcement, whether local police, sheriff's deputies or the FBI. And he said these agencies work with his office and state and local prosecutors to sort out on which side of the line the conduct falls.

There are reasons to believe that voters could find themselves being watched in a way that might cross the line.

In May, state Sen. Kelly Townsend, R-Apache Junction, unable to get colleagues to outlaw ballot drop boxes, proposed a solution at a public hearing.

"I have been so pleased to hear all of you vigilantes out there that want to camp out that these drop boxes, right?'' she said. "So, do it!''

Townsend said that will send a message to what some who believe there is election fraud have called "mules,'' people who carry around and deposit fraudulent ballots into those boxes which are available through 7 p.m. on Election Day.

She said one option is using "trail cameras,'' normally used to monitor wildlife in remote locations. But Townsend said there are others.

"We're going to have people out there watching you,'' she said. "And they're going to follow you to your car and get your license plate.''

"We've not seen evidence so far of vigilantes massing to go to polling places or to look at ballot drop boxes, or anything like that,'' Restaino said. "But we would certainly be attuned to allegations that came through of people intimidating or threatening or engaging to try to get someone not to vote.''

And part of that, he said, would be to determine the "intent'' of those hanging out at drop boxes or polling places.

Ditto, he said, of people taking videos while at least 75 feet from polling places, a perimeter required under Arizona law.

"It seems unlikely that taking pictures and video, on its own to a federal violation of voting access fraud,'' Restaino said.

It all comes down to that question of intent. And some of that can be determined by other inputs.

"We'd look at social media potentially on someone,'' Restaino said, what people are saying publicly. Even the way people act or dress, he said, as well as signs they are carrying can figure into whether prosecutors believe the laws against voter intimidation are being broken.

"I don't mean to suggest that someone's face is going to mean a violation,'' Restaino he said. "But if someone is visibly angry, neck veins bulging out, hurling racial slurs at a Hispanic voter trying to walk into that polling place, that's sure something we'd take a look at.''

A closer call, he said, is when someone is openly carrying a weapon -- something allowed under Arizona law and constitutionally protected -- while hanging around just outside that 75-foot perimeter.

"We talk about Second Amendment protected rights,'' Restaino said.

"But there's time when Second Amendment rights can intersect with Fourteenth Amendment rights (of equal protection under the law) and voting rights,'' he said. "So Second Amendment rights doesn't always give someone with a firearm the right to be present if they are threatening and intimidating.''

But simply being openly armed and standing outside the perimeter, by itself, doesn't violate the law, Restaino said.

Even if there is evidence of intimidation, that doesn't mean it falls to Restaino's office to prosecute.

There also are Arizona laws making it a misdemeanor to intimidate a voter. He said that the question of who handles such an inquiry likely would be determined after conversations with local officials.

But there are some guideposts on where jurisdiction might lie.

"Maybe something that goes through multiple counties is something that is more likely to be federal,'' Restaino said. Conversely, he said if those engaging in illegal behavior were already on the state's radar then it might be best to leave the case for local officials.

"I feel like we do a pretty good job in Arizona on working through those issues,'' Restaino said.

But there are areas where his agency is unlikely to get involved.

For example, Restaino said he cannot think of any situation where the Department of Justice has interceded in cases where the practices of local election officials result in long lines at polling places -- even if these seem to be concentrated in areas serving minorities. Anyway, he said he believes that officials in Arizona have done a "very professional job'' in serving voters.

"And if there are lines, it's because of some circumstances that they're trying to get better at but are not based on (racial) animus or anything like that,'' Restaino said.

Nor is his agency involved in what's been dubbed "ballot harvesting,'' taking taking someone else voted ballot to a polling place. That, he said, is strictly a state issue, governed by state laws that make it a crime unless the person making the deposit is a family member, someone from the same household or a caregiver.

Restaino said, however, his office will prosecute -- and has prosecuted -- "stuffing'' ballot boxes, casting ballots in someone else's name. And felons who illegally vote also violate federal laws.

Still, he ascribes to the views of former U.S. Attorney William Barr, who used to be his boss, who has said publicly -- and as he told the Jan. 6 Committee, to then-President Trump -- that there is no fraud that would have changed the outcome of the 2020 election.