A federal judge rejected a request by a retirees’ association that he issue a temporary restraining order targeted at conduct outside of Arizona drop box locations that some voters have described as intimidating.
US District Judge Michael T. Liburdi said in an opinion Friday that the association, the Arizona Alliance for Retired Americans, had “not provided the Court with any evidence that Defendants’ conduct constitutes a true threat.” The retirees’ association had sued Clean Elections USA and its founder Melody Jennings, who publicly called for individuals to gather at ballot drop box locations and surveil voters. The association is accusing her and the group of coordinating a campaign of voter intimidation. The decision denying the temporary restraining order and a preliminary injunction will be appealed, according to a notice by the plaintiffs to the docket soon after the decision came down.
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“On this record, Defendants have not made any statements threatening to commit acts of unlawful violence to a particular individual or group of individuals. There is no evidence that Defendants have publicly posted any voter’s names, home addresses, occupations, or other personal information,” Liburdi wrote. He pointed to assertions from Jennings that her group’s volunteers follow the law and to social media posts instructing them not to engage with voters.
“Even if these statements are mere window dressing, a reasonable listener could not interpret Ms. Jennings’ social media pronouncements that alleged ‘mules’ will ‘shrink back into the darkness’ following her drop box initiative as true threats,” he wrote. The judge also concluded that the conduct “did not fall into any traditionally recognized category of voter intimidation.”
“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. The Court acknowledges that Plaintiffs and many voters are legitimately alarmed by the observers filming at the County’s early voting drop boxes,” the judge wrote, adding that, nevertheless, the plaintiffs had not met the legal requirements for securing an emergency order from the court. He said that they had “not provided the Court with evidence that Defendants intend to prevent lawful voting.”
Additionally, Liburdi dismissed from the case Voto Latino, a group that joined the retirees’ association in bringing the lawsuit. The judge said that Voto Latino had not provided sufficient proof that it was being harmed by the alleged conduct.
In seeking the order from the court, the organizations pointed to public comments by Jennings calling for people to gather at ballot drop boxes to deter “mules” – a reference to a far-right conspiracy theory of mass voter fraud – and the organizations had accused the defendants of coordinating a campaign of voter intimidation in Arizona.
During a hearing Wednesday, the defendants’ attorney Veronica Lucero pushed back at the allegations, telling the judge there was no direct evidence connecting her clients to conduct that has been reported to Arizona election officials as intimidating. She also argued that Jennings – in her calls for groups of people to observe and record voters that they believe are casting illegal ballots – had encouraged everyone to follow the law.
Liburdi raised concerns at the hearing about how the First Amendment would constrain his ability to issue the order being sought by the organizations. A second lawsuit was filed Tuesday against Jennings, Clean Elections USA and other groups and individuals accused of conspiring to intimidate voters. That case was transferred to Liburdi’s docket on Thursday.
The two groups, Arizona Alliance for Retired Americans and Voto Latino, had been seeking a temporary restraining order and a preliminary injunction that would bar the defendants “from gathering within sight of drop boxes; from following, taking photos of, or otherwise recording voters or prospective voters, those assisting voters or prospective voters, or their vehicles at or around a drop box; and from training, organizing, or directing others to do those activities.”
Lucero, the attorney representing Clean Elections USA and Jennings, said at Wednesday’s hearing that a temporary restraining order would infringe on the individuals’ right to assemble. She repeatedly argued that the defendants couldn’t be linked to any voter intimidation: “They have pointed to some complaints of voter intimidation, but there’s no connection between that and the defendants’ actions,” Lucero argued, adding that Jennings “has not advocated for any kind of voter intimidation.” Issuing a temporary restraining order, Lucero argued, “would chill the rights of innocent people who believe that they need to observe the drop boxes in case there is illegal activity.”
Attorneys for the plaintiffs had introduced several witnesses who said they felt intimidated by the conduct of the people – some of them who have been armed – at ballot boxes throughout Arizona.
One of the witnesses was Jenea Phillips of Mesa, who filed a complaint to the Arizona Secretary of State about the conduct. She testified that she felt intimidated while casting a ballot at a Mesa ballot drop box because someone appeared to be filming her.
“My intuition just told me that something was off,” Phillips said. “It made me nervous, but I also wanted to report it to be able to provide for the safety of other voters.”
She said she was concerned that the person was gathering identifying information about her: “My anonymity was lost,” she said.
One of the other witnesses was Saundra Cole, president of the Arizona Alliance for Retired Americans, who noted that many older Arizonans can’t stand in line for long periods of time. The presence of defendants at ballot drop boxes, particularly those who are taking photographs of cars and license plates, has been intimidating to members, she said – even if they are just watching reports about it on television.
“We have a right to vote,” Cole said.
“I’m afraid that it’s going to stop some of my members from going out and being able to do what they’ve always done,” she said, which is to “go to a poll or drop their ballots off in a box. And that’s what’s happening.”