A federal judge on Wednesday considered arguments over whether to issue a restraining order that would keep “vigilantes” away from drop boxes in Arizona in what advocacy groups describe as a naked ploy to intimidate voters.
“I’m going to take the matter under advisement,” U.S. District Judge Michael T. Liburdi, a Donald Trump appointee, said while promising to issue an order as quickly as possible — hopefully by Friday or at the latest this weekend — given the urgency of the matter as the Nov. 8, 2022 midterm elections bear down on the calendar.
The quickly assembled hearing fell two days after non-profit groups Arizona Alliance for Retired Americans and Voto Latino sued an entity going by the name Clean Elections USA, its founder Melody Jennings, and numerous unidentified yet “affiliated” people showing up armed at the drop boxes.
Jennings, who appeared on the podcast of Donald Trump’s disgraced former White House strategist Steve Bannon, justified her call for action on what she described as so-called ballot “mules.” The phrase recalls the conspiracy theories peddled by right-wing academic Dinesh D’Souza’s film “2000 Mules,” whose debunked premise inspired a fit of laughter from ex-Attorney General Bill Barr.
Arizona has strict rules for who can and cannot carry ballots to ballot boxes. Liburdi said he loathed the term “mules” as perjorative but understood the concept.
Saundra Cole, the president of the Arizona Alliance for Retired Americans, testified first as a witness.
“We here in Arizona have been trying to preserve social security, Medicare and Medicaid, but in the past few years, we have been very concerned with voting,” Cole noted.
Estimating that the non-profit has 49,000 to 50,000 members in every county, Cole said that the members range between 65 to 90 years old and have been diagnosed with various disabilities. That requires many members to take advantage of mail-in and drop-box voting. She said waiting in long lines for hours on Election Day can be prohibitive for seniors with mobility issues.
“We can’t do that because of our age,” Cole said of usual elections processes. “Going to the polls is just stressful sometimes.”
She testified that the armed people showing up at drop boxes hasn’t only caused fear in her members — but also with her.
“I am trying not to be intimidated to speak out and be worried about someone coming to my home,” Cole said.
Asked why she did not choose another method of casting her ballot, Cole replied: “We have a right to vote. This is our right.”
For Dora Vasquez, who works part-time at the same organization, the COVID-19 pandemic adds another complication to the mix.
“A lot of us have been in isolation because of the pandemic,” Vasquez said, adding that elderly people have been stuck at home watching false voter fraud claims and accounts of voter intimidation on television.
That too has been intimidating, requiring her organization to devote money and resources to address it, Vasquez said.
Ameer Patel, the vice president of programs at Voto Latino, also reported having to make these investments because of those threats.
Attorney Veronica Lucero, who represents Clean Elections USA and Jennings, tried to distance her clients from the actions of the armed people who have showed up at the drop boxes. She repeatedly asked the witnesses whether they had direct knowledge tying her clients to those individuals. Cole replied that she learned about the connection from news accounts.
Other than the witnesses affiliated with the organizations that filed the lawsuit, the plaintiffs also called Jenea Phillips, a 41-year-old stay-at-home mother who felt that she was being recorded casting her ballot. She said that she saw a man appearing to point a phone at her at a drop-box within 75 feet, calling that proximity unlawful.
“The entire situation just seemed not right at that moment,” the woman said.
The testimony went to a key allegation of the plaintiffs’ case: According to the lawsuit, Jennings threatened to use the images and video captured by those crowds to “dox” people.
Attorney David Fox, representing the plaintiffs, presented several of Jennings’ messages on Trump’s Truth Social website as evidence along with clips from her appearance on Bannon’s War Room.
The judge, after taking a late afternoon break, forced Fox to admit that there had been no “true violence.” He suggested it would be hard for him to issue an injunction based on speculation that violence might break out.
The judge also suggested that Fox was suggesting a “low standard” for incitement — which is what the plaintiffs suggested Jennings was doing in connection with the so-called vigilantes.
The judge further questioned whether taking photos and videos of voters approaching ballot boxes was an act of “intimidation” or whether it was protected activity under the First Amendment.
“I feel like I’d be encroaching on First Amendment activity on these facts,” the judge said with regards to the cited acts of filming. But he said the activity could become more troublesome the closer the alleged vigilantes were to the ballot boxes or to the voters’ faces.
Fox suggested that Jennings was “doing more” than she was “talking about” in the submitted evidence and was, in his estimation, encouraging activity that went over the line.
“I think I’m constrained by the Constitution,” the judge said as to an injunction proposed by the plaintiffs. “I think I have to respect the First Amendment.”
Suggesting that the plaintiffs might not have alleged enough facts to warrant judicial intervention — or at least not to the degree they wished — the judge said the situation would be different if Jennings told her operatives to “get in” the “face” of voters.
“That seems like intimidation,” the judge said while highlighting the distinction posed by his hypothetical, “but she’s not doing that.”
Fox attempted then to argue that the legal concept of intimidation goes further than the judge suggested.
“I think that’s probably unconstitutional,” the judge again said of an injunction proposed by the plaintiffs. He then called the proposed document a “pure violation of [Jennings’] free speech rights.”
The judge next engaged in a back-and-forth with Fox about what might pass as a constitutionally acceptable injunction. Fox said the issue was vexing and that they were between “a rock and a hard place” given the broad nature of the alleged conduct.
Lucero said that the plaintiffs failed to prove any violations of federal law — including the Ku Klux Klan Act and the Voting Rights Act — and that neither Jennings nor Clean Elections USA had directly encouraged illegal activity.
The judge asked if Jennings was “training” people on how to deal with the “media.”
“I can’t honestly answer that,” Lucero said — but the attorney then noted that Jennings told people via online posts not to engage with anyone generally speaking.
The judge then suggested that Jennings could direct her follows to stay on public sidewalks or perhaps train her followers “not to shout at or even attempt to verbally communicate with anybody dropping a ballot off.”
Lucero said that a ban on communication would likely infringe on Jennings’ First Amendment rights.
The judge then said one of Jennings’ goals appeared to be voter “deterrence.”
Lucero responded that Jennings had already told people that she wants them to follow the law.
Citing photos that appeared to show the alleged vigilantes photographing license plates, the judge suggested that a ban on the “gratuitous” publishing of a voter’s license plate number might be part of a compromise order; Lucero indicated that such photos were uncouth but not illegal — even in the context of identifying voters. Some discussion surrounded how easily a member of the public could ascertain a voter’s identity based on a photo of the voter’s license plate.
Lucero added that she had only represented the defendants for approximately 24 hours and didn’t have a full picture of the group’s activities, statements, and postures. However, generally speaking, she said the alleged vigilantes were not operating under the direct supervision or control of Clean Elections USA or Jennings.
Lucero had suggested that her clients were not trying to intimidate voters, but Fox rebutted that argument. He reiterated that voter intimidation was, in his opinion, precisely what the evidence showed. Fox said Jennings and/or the group had posted images of voters without any evidence to prove the depicted individuals were violating the law.
Fox then argued that a 75-foot ban on electioneering near a ballot box — a distance contemplated in state law — was a more narrow issue than the overall issue of voter intimidation, which he said could occur beyond that boundary.
Fox next asserted that the evidence suggested a “growing pattern of voter intimidation.”
The underlying issue is a conflict between the First Amendment, the Second Amendment, and voter intimidation bans.
Arizona is an open carry state.
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