The group may not take photos or videos of voters, openly carry firearms near ballot boxes, or post information about voters online, a federal judge ruled.
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A secure election drop box on Tuesday in Phoenix. A federal judge in Arizona placed limits on an election-monitoring group that had been watching ballot boxes.Credit…Rebecca Noble for The New York Times
Nov. 1, 2022A federal judge in Arizona has sharply curtailed the activities of an election-monitoring group in the vicinity of ballot boxes, including taking photos or videos of voters, openly carrying firearms, posting information about voters online, or spreading falsehoods about election laws.
The group, Clean Elections USA, has the stated goal of preventing voter fraud by staking out ballot boxes to ensure that people don’t behave as “mules” by illegally casting multiple ballots. In recent weeks, self-described “mule watchers” — some armed — have gathered around outdoor ballot boxes in Maricopa County to take pictures of voters and, in some cases, post those images online.
Last week, the League of Women Voters sued the group, saying that its actions amounted to “time-tested methods of voter intimidation,” and seeking an injunction to halt its activities. Early on Tuesday before a hearing on the matter, Clean Elections USA said it had agreed to cease some activities, including refraining from openly carrying guns or wearing visible body armor within 250 feet of ballot boxes, as well as following or interacting with voters within 75 feet of the boxes.
But the temporary restraining order issued by Judge Michael T. Liburdi, who was appointed by former President Donald J. Trump, goes well beyond that agreement, prohibiting the group “and other persons in active concert or participation with” it from taking photos or videos of voters or disseminating information about voters online, and also from “making false statements” about Arizona’s statutes regarding early voting in interviews or on social media. Lawyers for Clean Elections USA had resisted those limits, claiming they impinged on the group’s First Amendment rights and, in the case of comments made by its founder, Melody Jennings, would amount to unconstitutional prior restraint.
“It is imperative we balance the defendants’ right to engage in First Amendment-protected activity with the plaintiffs’ right to act without intimidation or harassment,” said Judge Liburdi after a marathon hearing in Phoenix punctuated by testimony from a Mesa, Ariz., man who said he and his wife were menaced when they went to vote last month.
According to the man, who testified without revealing his name publicly for fear of harassment, eight to 10 people filmed the couple and told them they were “hunting mules.” Images of him and his car were posted online and Ms. Jennings subsequently appeared on the podcast of Stephen K. Bannon, the former Trump adviser, saying they had caught a mule and “blasted it out viral.”
Judge Liburdi called his experience particularly compelling, and noted that it went well beyond testimony from last week in a parallel case against Clean Elections USA. In that lawsuit, brought by the Arizona Alliance for Retired Americans and Voto Latino, the judge declined to enjoin Clean Elections USA’s activities, saying he had not seen any evidence that real harm had befallen any voters. That ruling is being appealed in the Ninth Circuit.
In his concluding remarks on Tuesday, Judge Liburdi pointed to incorrect statements made by Ms. Jennings in posts on social media and in interviews that only spouses could return ballots on behalf of voters in Arizona, when in fact housemates and caregivers are legally permitted to do so in the state.
“This does not prohibit Miss Jennings from correctly stating what the law is,” said Judge Liburdi, noting that he would also draft a preliminary injunction against Clean Elections USA in coming days. “I just have a problem with her stating it incorrectly in a way that is intimidating or coercive to voting behavior.”
On Monday, the Justice Department filed a brief on the issue, noting that while it had no opinion on the lawsuit itself, the Constitution does not protect voter intimidation and that harassing or trying to harass people casting ballots could violate the Voting Rights Act of 1965. Underscoring the urgency of the moment, lawyers for the League of Women Voters noted that Tuesday was the last day to mail in early ballots under Arizona statute, making ballot boxes the only option for people who wish to vote before Election Day.
Tuesday was the last day to mail in early ballots in Arizona, making ballot boxes the only option for people who wish to vote before Election Day.Credit…Rebecca Noble for The New York TimesAlexander Kolodin, a lawyer who represents both Clean Elections USA and Ms. Jennings, said in court that he would most likely appeal the latest ruling. Although Clean Elections USA had voluntarily agreed to the restrictions on weapons, as well as on talking to, yelling at, or otherwise confronting or following voters, he argued that the restrictions on photography, online posting and discussing Arizona voting laws infringed on free speech.
Mr. Kolodin noted that a substantial press contingent had begun gathering near ballot boxes in Maricopa County over the past few weeks and that they had posted photos and videos of voters. “The Washington Post is intimidating voters,” he said.
With that in mind, he told the judge his clients were unfairly being singled out. “It seems like our clients are on trial for the entire state or anybody who wants to participate in ballot box monitoring or even share their views,” Mr. Kolodin said.
At the heart of those views is the false belief that illegal votes cast at drop boxes were responsible for President Donald J. Trump’s defeat in the 2020 elections, a theory espoused in the discredited conspiracy-laden documentary “2000 Mules.”
Ms. Jennings, in podcast interviews, has said she was inspired by a “teaser” for the movie that was released last spring. By the time “2000 Mules” was released in May, she had already built a significant following on the social network Truth Social based on her proposal to station observers at ballot boxes around the country. She has said she is recruiting volunteers to watch ballot boxes in every state, but has not indicated where other monitors might be active.
A Christian pastor and counselor based in Tulsa, Okla., Ms. Jennings has criticized the media’s coverage of Clean Elections USA. In a Monday interview on “War Room,” Mr. Bannon’s show, she said she was “tired that nobody comes and asks what it’s about.” Ms. Jennings has not responded to multiple requests for comment from The New York Times.
Pinny Sheoran, president of the League of Women Voters of Arizona, also provided sworn testimony at Tuesday’s hearing, describing how the activities of Clean Elections USA and similar groups had frightened her members, who feared they could be followed or even physically assaulted it they sought to deposit a ballot in a drop box. To address those concerns, the group had spent time and money aiming to educate Arizona voters that they had a legal right to vote, she said.
“Today’s U.S. District Court decision is a victory for the voters of Arizona who have the right to cast their ballots free from intimidation, threats or coercion,” she said in a statement after the hearing.