PHOENIX — Yavapai County groups must drop their plans to watch ballot drop boxes, because it likely violates both state and federal law, an attorney for Protect Democracy Project says.
But it remains an open question whether the planned actions of these organizations — or others who may be readying similar activities as early voting begins Wednesday — crosses the legal line.
The Lions of Liberty and the Yavapai County Preparedness Team plan to operate what they call Operation: Drop Box. A website for the operation seeks “patriots” to take two-hour shifts watching 19 drop boxes, the freestanding boxes set up by county officials where voters can drop their early ballots.
“Bring a phone or a camera,” the web site says. “If you see someone putting more ballots in than their own, take a picture of them, their car, and their license plate.”
All that got the attention of Jared Davidson, legal counsel for Protect Democracy which lists among its projects as fighting against voter intimidation.
“Your plan — no matter your intent — constitutes illegal voter intimidation and may expose your organizations, their members, any volunteers, and co-conspirators to both civil and criminal penalties, including money damages,” he wrote in a letter to them.
And Davidson told Capitol Media Services that what the groups have in mind violates the law, even if they advise volunteers not to confront or engage with voters. Instead, group organizers say the watchers should contact them, and they will notify County Sheriff David Rhodes “who is already aware of what we are doing and will do what he can.”
But Davidson said it is legally irrelevant whether any of the box watchers actually approach those dropping off their ballots. He said their mere presence there would intimidate.
The practice may not be limited to Yavapai County.
Earlier this year, state Sen. Kelly Townsend, R-Apache Junction, unable to get colleagues to outlaw drop boxes entirely, 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 at these drop boxes, right?” she said. “So do it.”
Townsend said that will send a message to what some people have claimed is fraud due to “mules,” people who some say carry around and deposit ballots, fake or otherwise, into these boxes.
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“We’re going to have people out there watching you,” Townsend said. “And they’re going to follow you to your car and get your license plate.”
Davidson called it an “alarming and dangerous trend.”
All that, however, still leaves the question of whether such activities are illegal.
Asked about the Townsend comments earlier this year, Gary Restaino, the U.S. Attorney for Arizona, said it’s not clear cut, whether it involves those hanging out at drop boxes or even outside of polling places.
“It seems unlikely that taking pictures and video, on its own, is a violation of voting access laws,” he told Capitol Media Services. He said prosecutors would look at other factors.
“You’d look at social media potentially on someone, their public feeds, what they’re doing, what they’re saying online,” he said. “You’d look at the way people are acting, like you’re looking at the way they’re dressed.”
All that, Restaino said, helps determine if the intent of the activity is to intimidate would-be voters.
Luke Cilano, a board member of Lions of Liberty, said nothing the organization is planning crosses the line, with the watchers on public land.
“We’re not anywhere close to the drop boxes,” he said.
“We’re not in anyone’s way,” Cilano continued. “If we see something that’s out of ordinary, we have a right as citizens to take a picture or whatever and send it to the authorities.”
Davidson doesn’t see it that way.
It starts, he said, with the legally erroneous conclusion that anyone depositing multiple ballots must be acting illegally. The Arizona law against so-called “ballot harvesting” does not preclude people from putting more than one ballot in a box, with exceptions for spouses, people in the same household and even caregivers.
He also said the public declaration that photos and other information about drop box users will be turned over to the sheriff is, by itself, intimidating.
“A reasonable voter would be concerned if they are being monitored, surveilled and photographed by a right-wing extremist group monitoring ballot boxes,” Davidson said. “To be clear, they’ve been openly inviting their volunteers, essentially, to be armed.”
Not true, said Cilano — at least not in the way Davidson is claiming.
“Ninety percent of the people up here carry a concealed gun,” he said.
“Are we posting up with ARs?” he continued, a reference to assault-style rifles. “Absolutely not.”
And even Restaino said whether someone is visibly armed might be a factor, but it isn’t, by itself, sufficient to conclude that the intent is to intimidate voters.
Davidson acknowledged that, on the surface, activities might not seem to cross the line. He said election deniers and conspiracy theorists and extremists are getting “increasingly smarter” about their activities.
“We’re not seeing as many samples of individuals in white hoods going out and terrorizing voters,” Davidson continued. “They have a modern-day playbook. This is part of that playbook.”
Cilano, however, said box watchers are within the law, saying there’s no intent to intimidate voters — assuming that could be shown.
“Good luck proving intent in court,” he said.
Davidson called all that irrelevant, citing a section of the Voting Rights Act which says it does not require proving intent or conspiracy to intimidate to violate the law.
“The context here would make any reasonable Arizona voter scared to deposit their ballots,” he said. “And that is not permitted under Arizona or federal law.”
Davidson is preparing for a civil action even if no criminal charges are filed. He has put both organizations on notice he wants them to preserve all of its records on the operation “because litigation is imminent.”
