Federal Judge Allows Activists to Stake Out Ballot Boxes in Arizona

A federal judge on Friday declined to ban an activist group from gathering near ballot boxes in Arizona, arguing that the members’ actions did not appear to constitute a “true threat” or intimidation and that their right to assemble in public spaces is constitutionally protected.

In his 14-page ruling, Judge Michael T. Liburdi found that while “many voters are legitimately alarmed by the observers filming” at ballot boxes in Maricopa County, there was no proof that the group, Clean Elections USA, had encouraged acts of violence or posted personal or identifying information online.

“While this case certainly presents serious questions,” Judge Liburdi wrote, “the court cannot craft an injunction without violating the First Amendment.”

In denying the request, the judge said he would keep the case open and agreed to hear new evidence that the group has “engaged in unlawful voter intimidation.”

Clean Elections USA, whose founder is a purveyor of election and QAnon theories, has said it is trying to prevent voter fraud by organizing activists across the country to station themselves near drop boxes set up to receive mail ballots. The aim, the organizers say, is to observe voters and document possible instances of voter fraud or misconduct.

A lawsuit filed on Monday by two nonprofit organizations, the Arizona Alliance for Retired Americans and Voto Latino, alleged that the group’s intent was to dissuade people from voting through harassment and threats.

The complaint, which asked for an injunction and restraining order against Clean Elections USA, identified several incidents in which voters in Maricopa County were followed, photographed and accused of being “ballot mules” — a term borrowed from a conspiracy theory about voters fraudulently casting dozens of ballots at once. In several cases, the activists carried firearms and wore military-style protective gear and masks.

Judge Liburdi’s ruling, which is limited to Arizona, comes 11 days before a midterm election that has been riddled with false claims and specious theories about misconduct in voting, and as former President Donald J. Trump continues to spread the falsehood that the 2020 election was stolen from him. Many right-wing groups have mobilized to work the polls, challenge ballots and station observers at counting centers in search of wrongdoing.

Ballot drop boxes have become an early flash point. Since early voting began in Arizona on Oct. 12, Arizona’s secretary of state has referred at least six complaints of voter intimidation to the U.S. Department of Justice and the state’s attorney general for investigation. All of the incidents took place at outdoor ballot boxes in Phoenix and Mesa, a suburb.

“Voter intimidation is illegal, and no voter should feel threatened or intimidated when trying to vote,” Secretary of State Katie Hobbs, a Democrat who is running for Arizona’s governor, said in a statement this week. “Anyone attempting to interfere with that right should be reported.”

At a hearing on Wednesday, Veronica Lucero, a lawyer for Melody Jennings, the founder of Clean Elections USA, argued that there “there is no connection” between the activists cited in the complaints in Maricopa County and Clean Elections USA. Ms. Jennings “has simply advocated that people need to follow the law,” Ms. Lucero said.

Ms. Jennings has described the ballot box monitors as “my people” and “our box watchers” in social media posts. On Friday, she praised the judge’s ruling in a post on Truth Social, the social media platform founded by Mr. Trump.

“The Constitution won today,” Ms. Jennings wrote. “This battle is not over, but today was a step for freedom and for your 1st amendment rights being preserved.”

In a statement, the Arizona Alliance for Retired Americans called the ruling “truly disappointing,” adding that “American citizens should be able to cast a ballot without fear of personal injury or other harm to their safety and security.”

Marc Elias, a Democratic elections lawyer whose law firm represents the plaintiffs in the suit, wrote on Twitter on Friday that he planned to appeal.

Ms. Jennings, who is from Tulsa, Okla., and has described herself as a Christian pastor and counselor, has fast become a leading voice in the election-denial movement. She first proposed sending observers to ballot boxes this spring, just weeks after joining Truth Social.

“I have an idea,” she wrote on April 19. “In those states where they do not outlaw drop boxes, I think we have no less than 10 patriots standing around every one of those 24/7 for the duration of the voting period.”

In podcast interviews, Ms. Jennings said she was inspired by a trailer for the film, “2000 Mules,” released in May. The film, directed and produced by the right-wing pundit Dinesh D’Souza, relied heavily on debunked research from True the Vote, a group focused on voter fraud. The film asserts that “mules” paid by the Democratic Party ferried illegal votes to ballot boxes, often in the dead of night. It was shown in more than 400 theaters and brought in some $1.4 million at the box office.

Ms. Jennings’ ideas spread quickly as her posts were shared by election deniers with large numbers of followers, including Mr. Trump and his former attorney, Sidney Powell. Ms. Jennings launched a website in May and, this summer, frequently promoted her plans on right-wing podcasts. She urged people not only to gather around ballot boxes, but to photograph voters and reveal their identities online.

“I am FULLY STOKED that ballot trafficking mules are about to be completely doxxed and put on blast at every drop box across America VERY SOON,” Ms. Jennings posted on Truth Social on Sept. 8.

Ms. Jennings’s following on the platform has grown from barely 100 in April to more than 35,000.

Internal membership rolls show that roughly 4,500 people in 48 states have registered with Clean Elections USA, according to a report in Votebeat, a nonprofit news outlet. The group tells volunteers that the information they collect will be shared with True the Vote, which in turn works with Protect America Now, a group of sheriffs who have pledged to investigate election fraud, the report found.

It is unclear if Ms. Jennings has significant financial support. A fund-raiser she set up online in August had raised $3,600 as of Friday.

Over the summer, several Republican officeholders and candidates in Arizona encouraged the effort and Ms. Jennings organized what she called a “dry run” during the state’s Aug. 2 primary elections.

A second organization, the Lions of Liberty, began organizing ballot box surveillance in Yavapai County, north of Phoenix. The group is an offshoot of a third organization: a local chapter of the Oath Keepers called the Yavapai County Preparedness Team.

In an interview, Jim Arroyo, an Oath Keeper and member of the Lions of Liberty board of directors, said the intent of what his group called “Operation Drop Box” was to “watch for people stuffing more than 30, 40, 50 ballots in the box and to photograph it and send that to law enforcement.”

There is no evidence of a widespread ballot-stuffing operation in the 2020 election. William P. Barr, who served as Attorney General under Mr. Trump, described the evidence presented in “2000 Mules” as “singularly unimpressive” in an interview with the congressional committee investigating the Jan. 6 attack on the Capitol.

Most states with early voting allow individuals to return other peoples’ ballots to boxes although rules vary significantly by state. In Arizona, family and household members, as well as caregivers, are legally permitted to do so. The laws are designed to make it easier for older, ill or disabled voters to cast ballots.

Arizona does not permit observers to remain within 75 feet of ballot boxes or polling places, and even outside that perimeter they are prohibited from making “any attempt to intimidate, coerce, or threaten a person to vote or not vote,” according to the secretary of state. That behavior includes “aggressive or ostentatious display of weapons” or “directly confronting or questioning voters in a harassing or intimidating manner.”

Voto Latino and Arizona Alliance for Retired Americans, represented by the voting rights firm Elias Law Group, claimed Clean Election USA was violating federal law, citing the Ku Klux Klan Act of 1871 and the Voting Rights Act of 1965, both of which prohibit voter intimidation.

In his decision on Friday, Judge Liburdi dismissed Voto Latino from the suit, saying that it did not have standing because it had not demonstrated a financial impact from the problems it identified in the complaint.

Judge Liburdi, who was appointed to the U.S. District Court for the District of Arizona by Mr. Trump in 2019, will have an opportunity to weigh in on the matter again. The League of Women Voters filed on Tuesday a second federal suit naming Clean Elections USA, and Ms. Jennings, adding the Lions of Liberty and the Yavapai County Preparedness Team as defendants. That lawsuit, citing the same federal laws, noted that “Congress passed both statutes to prevent the very kinds of vigilante-led voter intimidation defendants are now deploying.”

That complaint was prepared by the Protect Democracy Project, which this week also filed a defamation claim against Mr. D’Souza and True the Vote, among others, over “2000 Mules.” Mr. D’Souza and Catherine Engelbrecht, the founder of True the Vote, did not immediately respond to a request for comment.

“Melody Jennings is not operating in an absolute vacuum,” said Orion Danjuma, an attorney at Protect Democracy Project who worked on the Arizona case.