Judge: Quick decision needed on ballot drop-box intimidation claims

PHOENIX — A federal judge could decide as early as Wednesday whether to restrict the activities of those watching ballot drop boxes in Maricopa County.

“Expediting the case is essential since voting is happening in Arizona right now,” Judge Michael Liburdi said at a Tuesday hearing. And that voting, he noted, includes people filling out their early ballots and seeking to deposit them in one of two official county drop boxes — the places that attorney David Fox told him are currently being monitored by members of Clean Elections USA.

But Liburdi made it clear that if he does issue an injunction he is not going to give those who filed suit everything they want.

In legal papers filed Monday, Fox, who represents Arizona Alliance for Retired Americans and Voto Latino, asked the judge to bar members of Clean Elections USA and those working with them from “gathering within sight of drop boxes.” Fox also wants to prohibit them from following voters or taking pictures or videos of them or their vehicles.

Fox said the actions need to be restrained because they amount to illegal intimidation.

But the judge wasn’t so sure that such a broad injunction was appropriate or even legal, noting there is nothing inherently illegal about being on a public street and watching drop boxes.

“I wouldn’t want to interfere with any lawful activity,” Liburdi said, essentially telling Fox he needs to rethink — and recraft — what he wants in a court order and “leave the ability of individuals to lawfully observe.”

“I would want the injunction to be as narrowly tailored as possible to (address) any legal violation,” the judge said.

The hearing set for Wednesday comes as Maricopa County Sheriff Paul Penzone said his office is providing security around drop boxes following complaints that voters are being harassed. The sheriff said two of those already have been referred to the County Attorney’s Office for possible prosecution, though a spokeswoman said her agency has not yet seen them.

It also comes as a second lawsuit was filed late Tuesday in federal court.

Attorneys for the League of Women Voters made similar allegations against Clean Elections USA, seeking to enjoin members of the organization from intimidating voters. But it also alleges that Lions of Liberty and the Yavapai County Preparedness Team have started their own campaign to surveil all drop boxes in Yavapai County, film voters and then report to law enforcement any voters who deposit multiple ballots.

On Tuesday, Fox acknowledged that he has yet to provide legal notice of the lawsuit to Melody Jennings, the founder of Clean Elections USA who has promoted having multiple volunteers stationed at drop boxes not only here but in other states to not only monitor activities but also to take pictures of voters and their license plates.

Fox said he believes Jennings lives in Tulsa and told Liburdi he has a process server out looking for her. The judge told Fox that she should not only be served with a copy of the lawsuit, but also be informed of Wednesday’s hearing.

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But Liburdi said he might go ahead with the hearing — and even issue a ruling even if she is not served and neither she nor her lawyers show up, noting that Fox said he sent the lawsuit to an email address he has for her. The issue, the judge said, is time.

“The voting is occurring right now,” Liburdi said. And the judge said that if the rights of voters are being violated, the failure to curtail illegal activities of the ballot box watchers — assuming he rules that way — could result in “irreparable injury.”

Efforts by Capitol Media Services to contact Jennings through multiple platforms have been unsuccessful.

The scope of what Liburdi might order — assuming he sides with challengers — depends on how he interprets two federal laws.

One is the 1965 Voting Rights Act. It makes it illegal to “intimidate, threaten or coerce” any person for voting or attempting to vote.

Challengers are telling Liburdi that Congress, in crafting the law, specifically said that there is no need to prove that it was anyone’s intent to intimidate.

Just an examination of their activities can determine whether the law is broken, they said. And the lawsuit makes it clear they believe that can be shown here.

“The (Clean Elections USA) defendants, monitoring drop boxes wearing full tactical gear and bearing arms, are intimidating voters by their presence through a clear threat of physical violence,” it says. And Fox said that the action of photographing license plates comes with the essential threat that information on voters will be posted publicly.

Challenges also contend the activities of the box watchers violate the 1871 Ku Klux Klan Act, which bars “conspiracies to interfere with federal elections.”

Fox also told Liburdi he understands that six separate complaints by voters who said they were intimidated already have been forwarded to the U.S. Department of Justice.

That led the judge to question whether federal prosecutors want to intervene in this case. Fox had no answer for him.