First Amendment Lawsuit | Right to Assemble

Arizona Federal District Judge Denies Injunction Against Arizona Poll Watching Group, DOJ Disagrees

In this Reuters file photo, a view of a Coconino County drop box which is used to accept early voting ballots outside the Coconino County Recorder’s office, which has made several security improvements including boulders lining the building, in Flagstaff, Arizona, Oct. 20, 2022. (Reuters/Michael Patacsil)

By Susanna Granieri

On Oct. 28, an Arizona federal district judge denied a request to block a poll-watching group from surveilling drop boxes citing First Amendment concerns. Three days later, the Department of Justice signaled its disapproval of the judge’s ruling.

The initial complaint filed by the Arizona Alliance for Retired Americans and Voto Latino in the U.S. District Court for the District of Arizona alleged that poll-watching group Clean Elections USA and its founder Melody Jennings were in violation of the Voting Rights Act and the Ku Klux Klan Act of 1871. The complaint stated Clean Elections USA members had been seen “wearing full tactical gear and bearing arms” as they monitored two drop box locations in Maricopa County.

The groups sought a preliminary injunction and a temporary restraining order, to deter the watchers from continuing to occupy areas around ballot drop boxes. The plaintiffs stated that without “immediate relief, Plaintiffs—and voters across Arizona—will suffer irreparable harm.”

But U.S. District Judge Michael Liburdi ordered that “while there are serious questions implicated, the Court cannot provide preliminary injunctive relief without infringing core constitutional rights.” He also dismissed Voto Latino as a plaintiff in the case, noting that it did not show the court evidence of injury to their organization.

In the DOJ’s statement of interest filed Oct. 31 in the U.S. District Court for the District of Arizona, the department sought to assist the court in its understanding of the Voting Rights Act, noting that the plaintiffs’ allegations “raise serious concerns of voter intimidation.”

“The First Amendment does not protect individuals’ right to assemble to engage in voter intimidation or coercion,” the DOJ stated. “Nor does it transform an unlawful activity for one individual — voter intimidation — into a permissible activity simply because multiple individuals have assembled to engage in it.”

In a parallel complaint filed in the federal district court Oct. 25, League of Women Voters of Arizona sued the Lions of Liberty and Clean Elections USA, citing similar concerns raised by Arizona Alliance. The two separate cases have since merged.

The DOJ noted that while “lawful poll-watching activities can support democratic transparency and accountability, when private citizens form ‘ballot security forces’ and attempt to take over the State’s legitimate role of overseeing and policing elections, the risk of voter intimidation—and violating federal law—is significant.”

Jennings recruited poll watchers specifically using the hashtag “Dropboxinitiative2022” on Truth Social, a right-wing Twitter-like platform owned by the Trump Media and Technology Group.

In a response filed Oct. 31, Clean Elections USA stated that the requests for injunctive relief would “chill” the group’s “First Amendment freedoms” because the request is “overly broad rather than narrowly tailored to address actual cases of voter intimidation (which Appellees are not responsible for).” 

The Arizona Alliance claimed that the watchers are intimidating voters by gathering at drop box locations in Maricopa County “with the express purpose of deterring voters—who Defendants irrationally fear are ‘ballot mules’—from depositing their ballots,” according to the complaint. 

Judge Liburdi stated that constitutional protections for free speech include “expressive conduct,” and that the objective of Clean Elections USA is to curb any “illegal voting and illegal ballot harvesting,” based on the poll watchers’ voter fraud theories. 

“The message is that persons who attempt to break Arizona’s anti-ballot harvesting law will be exposed,” Judge Liburdi wrote. He also stated that Jenning’s social media posts convey this message. “On this record, therefore, the Court finds that a reasonable observer could interpret the conduct as conveying some sort of message, regardless of whether the message has any objective merit.”

Judge Liburdi also noted that there is no proof that Clean Elections USA intends to “prevent lawful voting.”

“Rather, Defendants stridently maintain that they seek to prevent what they perceive to be widespread illegal voting and ballot harvesting,” he wrote.

The plaintiffs also cited different instances of alleged voter intimidation, including a complaint sent to the Arizona Secretary of State by a voter claiming they were filmed, photographed and accused of being a “mule” while approaching a drop box outside Maricopa County Mesa Juvenile Court. The Clean Elections USA members, according to the complaint, also took photographs of license plates and followed voters into the parking lot while filming.

The First Amendment protects a person’s right to record on public property, and in Judge Liburdi’s order, he noted that “The Court acknowledges that Plaintiffs and many voters are legitimately alarmed by the observers filming at the County’s early voting drop boxes. Alternatively, while this case certainly presents serious questions, the Court cannot craft an injunction without violating the First Amendment.”

In Arizona it is prohibited to attempt “to convince a voter to vote for or against anything on the ballot within 75 feet of a polling place” and to bring “weapons into a polling place or within 75 feet of a polling place entrance, even if the voter is licensed to carry such weapons,” according to the Brennan Center for Justice.

The complaint also referred to an incident in which the “Maricopa County Sheriff’s Office responded to complaints about two individuals stationed around the Mesa drop box in the evening with full disguises, tactical gear, and magazine clips. The Maricopa County Sheriff’s Office confirmed that both individuals were armed,” the complaint stated. 

“Plaintiffs have not provided the Court with any evidence that Defendants’ conduct constitutes a true threat,” the judge wrote. “On this record, Defendants have not made any statements threatening to commit acts of unlawful violence to a particular individual or group of individuals.”

Clean Elections USA’s website includes social media icons for Facebook, Twitter, Instagram, LinkedIn and Pinterest. The website’s Facebook icon sends a user to Truth Social, and its Twitter icon sends users to Gab, another far-right social media platform.

On Truth Social, Jennings goes by @TrumperMel with 32,600 followers, and mentions that Clean Elections USA must follow Arizona’s 75-foot rule.

“I need people there tonight to help my people. Lots of you!” Jennings wrote. “75 ft away from box, post up opposite so we see both sides. Someone get tags. No talking to them. Do NOT GO INSIDE 75 ft! They are trying to get us to engage them! Do not do it!”

While Judge Liburdi wrote that it was clear the Arizona Alliance for Retired Americans had standing to file suit, the group’s allegations that their members are “fearful of or feel intimidated by the drop box observers” were too “speculative” and did not display explicit voter intimidation.

“Further, while the irreparable harm factor tips in favor of Plaintiffs, the balance of the equities and public interest do not,” Judge Liburdi stated. “A preliminary injunction cannot issue on these facts, but Arizona Alliance is invited to return to this Court with any new evidence that Defendants have engaged in unlawful voter intimidation.” 

The Arizona Alliance for Retired Americans filed a notice of appeal and motion for a preliminary injunction pending appeal Oct. 28, stating that it was necessary to “prevent irreparable harm that cannot be undone after the election” and since voting is ongoing, “time is of the essence.” 

Judge Liburdi denied the request for an emergency preliminary injunction pending the group’s appeal Oct. 31, and requested that both parties discuss the possibility of resolving the case “in whole or in part, by agreement.”