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Arizona judge restricts Clean Elections USA’s ballot box monitoring


A federal judge has ordered that a group monitoring Arizona ballot drop boxes for signs of fraud stay at least 75 feet away from ballot boxes and publicly correct false statements its members have made about Arizona election laws.

The far-reaching order from U.S. District Judge Michael Liburdi dramatically restricts what Clean Elections USA or its allies can do or say near ballot boxes. The ruling prevents drop-box watchers from taking photos or videos of voters and using the material to spread baseless allegations of electoral fraud. Clean Elections USA has been among the groups echoing the unsubstantiated fraud claims of former president Donald Trump concerning the 2020 presidential election.

The order, which imposes temporary restraints, also requires the group to post statements online about the rules regarding drop boxes and prohibits it from making future false statements about Arizona election law.

Pinny Sheoran, the president of the League of Women Voters of Arizona, a plaintiff in a lawsuit brought against Clean Elections USA, called the ruling “a victory for the voters of Arizona who have the right to cast their ballots free from intimidation, threats, or coercion.”

Clean Elections USA agreed to parts of the order but contested others. A lawyer representing the group and its founder said the group was likely to appeal on First Amendment grounds.

Sheoran’s group and other voting rights advocates filed two lawsuits against Clean Elections USA; the suits were then merged. Liburdi said he aimed to strike a balance between protecting the group’s First Amendment rights and federal law prohibiting voter intimidation.

Liburdi is a longtime member of the Federalist Society, a conservative legal group that believes the state should impose only limited restrictions on individual liberties and align itself strictly with the U.S. Constitution. He refused last week in a related case to block groups from monitoring drop boxes. He said he had not heard enough evidence in that case that the actions of Clean Elections USA members constituted a “true threat” to voters and concluded that he could not “craft an injunction without violating the First Amendment.” That ruling is being appealed.

The judge decided to grant the temporary restraining order in this case after hearing testimony Tuesday from a man who said he and his wife were harassed when they put their ballots into a drop box last month in Mesa, a city east of Phoenix.

The man, who testified anonymously because of fears of harassment, said his wife was “terrified” when the couple went to drop off their ballots and found up to 10 election watchers with cameras waiting by the drop box.

He told the court that someone approached him and said, “We are hunting mules” — a reference to the discredited film “2000 Mules,” which claims drop boxes were stuffed with fraudulent ballots during the 2020 election. The founder of Clean Elections USA, Melody Jennings, later posted the man’s photo online, implying that his behavior at the ballot box had been suspicious.

Liburdi said the evidence presented at the hearing was “much stronger” and justified “this narrowly tailored form of relief.”

On Monday, the Justice Department filed a “statement of interest” in the case in which it argued that monitoring ballot drop boxes can amount to illegal voter intimidation.

Justice Dept. says ballot drop box monitoring in Ariz. is likely illegal

In the elections Tuesday, Arizona is once again a battleground — one of several states in which the close contest for control of Congress, along with crucial state-level offices with authority over election administration, are expected to be decided. In the lead-up to Election Day, state election officials say they have received complaints about intimidating or threatening conduct at ballot boxes.

Ballot drop boxes are locked containers into which voters can deposit their mail-in ballots, typically operating 24 hours a day. They are an alternative for voters who do not want to put their ballots in the mail or have run out of time to do so.

Trump and his supporters have made the drop boxes the focal point of baseless claims that they were used in a large-scale scheme to submit false ballots during the 2020 presidential election.

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Tuesday’s order extends to voters who use ballot drop boxes some of the same protections that are typically afforded at polling places.

Members of Clean Elections USA agreed to refrain from openly carrying firearms or wearing body armor within 250 feet of any ballot drop box; approaching within 75 feet of ballot boxes or of the entrance to the buildings where the boxes are sited; and intentionally following people they know to be dropping off their ballots, or shouting at or speaking to people within 75 feet of a ballot box, unless spoken to or shouted at first.

The group and Jennings, its leader, also agreed to state publicly online and through Election Day that Arizona law allows people to drop off multiple ballots in certain circumstances — correcting false statements to the contrary made by Jennings in public forums.

Liburdi’s order also prevents the group and its associates from filming or taking photos of anyone within 75 feet of a ballot box, or posting information online about anyone to allege voter fraud “based solely on the fact that they have deposited multiple ballots in a drop box.” It orders Clean Elections USA to “cease and desist making false statements” about the Arizona statute covering ballot abuse until “the close of voting” on Nov. 8.

Alleged voter intimidation at Arizona drop box puts officials on watch

The group contested the restrictions on making false claims about Arizona law and individual allegations of voter fraud, and on photographing or filming voters.

Alexander Kolodin, a lawyer for Clean Elections USA and Jennings, said those restrictions violated his client’s First Amendment right to free speech.

“We’re very happy that the court did not shut down drop box monitoring,” Kolodin said, according to the Arizona Republic. “The thing that we can’t have is the 75 foot filming limit. That’s a huge First Amendment problem.”

The Justice Department said in its filing Monday that “video recording or photographing voters during the voting process has long been recognized to raise particularly acute concerns.”

The Washington Post previously obtained copies of complaints referred to law enforcement in Arizona that show those methods of election monitoring can spark complaints of voter intimidation.

“I dropped off my ballot at the Maricopa County Recorders office and there were two men filming everyone as they drove through,” one voter wrote in a submission about the experience while voting in downtown Phoenix. “While this may not be illegal to do, it is very uncomfortable and feels intimidating.”

Surveillance video obtained by The Post shows a man appearing to engage with someone off camera after he deposited his ballot at a drop box on Oct. 17. (Video: The Washington Post)

Amy Gardner, Tom Hamburger and Yvonne Wingett Sanchez contributed to this report.

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