In response to allegations of so-called “mules” engaged in illegal “ballot harvesting” in the 2020 election, a group in Arizona has taken to monitoring ballot drop boxes to guard against potential election fraud in the current 2022 elections.
A lawsuit was filed to block the group from monitoring the ballot drop boxes, but a federal judge just ruled that doing so would violate the group’s “core constitutional rights,” The Hill reported.
However, the judge did acknowledge that “serious questions” had been raised about the group’s actions and the case was left open so that the plaintiffs could refile their suit with additional evidence of unlawful behavior that might warrant the injunction that had been sought.
Allegations of voter intimidation
A group calling itself Clean Elections USA, inspired by filmmaker Dinesh D’Souza’s “2000 Mules” documentary, organized to monitor ballot drop boxes in Arizona’s Maricopa County in order to guard against potential “ballot harvesting,” or the collection and submission of ballots on behalf of others, which is illegal in the state.
An organization known as the Arizona Alliance for Retired Americans filed a lawsuit to block those monitoring efforts as being unlawful under relevant provisions of the Voting Rights Act and the Ku Klux Klan Act with regard to voter intimidation.
Specifically, of the VRA, 52 U.S.C. Sec. 10307(b) states that “No person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote, or intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for urging or aiding any person to vote or attempt to vote, or intimidate, threaten, or coerce any person for exercising any powers or duties.”
Likewise, of the Klan Act, 42 U.S.C. Sec. 1985(3) states that it is a crime to “… conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote …” from actually casting their lawful vote.
An injunction can’t be issued “without violating the First Amendment”
Unfortunately for the Arizona Alliance, U.S. District Judge Michael Liburdi determined in his 14-page ruling that insufficient evidence of unlawful behavior by the Clean Elections group had been produced to warrant the grant of a requested temporary restraining order or preliminary injunction.
That is because, while some Arizona voters had complained of feeling intimidated by the group’s monitoring of drop boxes — at times armed — it nonetheless appeared to the judge that the monitors were otherwise abiding by state and federal laws and their conduct was protected by the First Amendment.
“The Court has struggled to craft a meaningful form of injunctive relief that does not violate Defendants’ First Amendment rights and those of the drop box observers,” Judge Liburdi wrote. “The Court acknowledges that Plaintiffs and many voters are legitimately alarmed by the observers filming at the County’s early voting drop boxes. But on this record, Defendants’ conduct does not establish a likelihood of success on the merits that justifies preliminary injunctive relief. Alternatively, while this case certainly presents serious questions, the Court cannot craft an injunction without violating the First Amendment.”
Plaintiffs can refile suit if actual evidence of “unlawful voter intimidation”
The Associated Press reported that Judge Liburdi noted in the decision that the Arizona Alliance had failed to prove that the actions of the drop box monitors constituted an unlawful “true threat” or intimidation. In his conclusion, however, the judge stated that “Arizona Alliance is invited to return to this Court with any new evidence that Defendants have engaged in unlawful voter intimidation.”
The Arizona Alliance told the AP that it was “disappointed” in the ruling and would appeal, and said, “We continue to believe that Clean Elections USA’s intimidation and harassment is unlawful.”