A Tale of Two Arizona Voter Intimidation Cases

One of my legal heroes, Gerry Hebert, texted me earlier this week to share some thoughts about Arizona Alliance of Retired Persons v. Clean Elections, one of the two pending Arizona voter intimidation cases. In Alliance of Retired Persons, a judge declined to put a stop to armed militia-types who were trying to intimidate people as they cast their ballots at drop boxes.

Gerry texted after reading my flag about the developing situation in Arizona in The Week Ahead on Sunday, October 23, (he’s a subscriber; I’m beyond flattered) when reports first surfaced. After that, two lawsuits were filed. Those reports led to two lawsuits. The second one is League of Women Voters v. Clean Elections USA. The plaintiffs in that case allege that organized and sometimes armed groups of individuals have surveilled, videotaped, and harassed voters who were dropping off ballots.

Gerry, a longtime civil rights lawyer, wrote to me about the first case, Alliance of Retired Persons, after the judge ruled against voters. He spent more than 20 years in the Civil Rights Division at DOJ and has been with the Campaign Legal Center since then, also engaging in private practice, specializing in voting rights and election law. He suggested I write a piece about the case for Civil Discourse.

Instead, I asked if he’d let me use his explanation of the case verbatim. So, Gerry, along with his friend Armand Derfner, a civil rights lawyer who has tried and argued voting rights and First Amendment cases in the Supreme Court, put this together for us. That was all I planned to share with you this evening, except that as I was finishing up, I learned that the Judge was about to rule in the second case, League of Women Voters. Observers in the courtroom expected him to issue an injunction, preventing intimidation of voters within 75 feet of ballot drop boxes.

That seemed like the more appropriate result here. The order in the first case was a bit of a head scratcher for anyone familiar with section 11(b) of the Voting Rights Act, which protects voters from threats and acts of intimidation and coercion at all stages of the voting process, including when a voter places ballots in a drop box. So, we’ll start with Gerry and Armand’s take on what the Judge got wrong in the first case and finish up with what happened in the second case.

Here is what Gerry and Armand wrote:

On October 28, 2022, federal Judge Michael T. Liburdi, appointed in 2019 to the District of Arizona, denied a temporary restraining order (TRO) to stop the voter intimidation going on in that state.  The opinion describes masked, armed men gathered in groups of 6 to 8, who followed voters, photographed their license plates, and verbally accused them of casting or carrying fraudulent ballots. The TRO was denied on the grounds that these men were engaged in protected First Amendment activity.  We believe this decision is disgraceful.

To fully see the reasons for our outrage over the judge’s decision, we are listing below a description of the facts from the judge’s order denying the TRO:

“Inspired by the film [a film claiming to describe incidents of voter fraud] Ms. Jennings  encouraged supporters and affiliates to gather near drop boxes in groups of “[n]o less than 8 people” to track and deter these supposed “mules [people carrying fraudulent ballots] .

“In the last several days, three separate Maricopa County voters filed formal complaints relating to voter intimidation near both early voter drop boxes. Both drop boxes are in parking lots and are positioned to allow voters to deposit ballots from their vehicles, drive-up style. The first complaint alleges that a group of individuals gathered near the Mesa, Arizona ballot drop box photographed and accused the voter and his wife of being mules. The voter further alleges that these individuals got in their vehicle and briefly followed him out of the parking lot to photograph his vehicle’s license plate.  The second complaint reported that individuals took photographs of a voter and his vehicle’s license plate while depositing mail-in ballots. The third complaint described a group of five or six men standing in the Mesa ballot drop box parking lot taking photographs of the voter’s vehicle and license plate.

“In addition to these complaints, the Maricopa County Sheriff’s Office was dispatched to the Mesa drop box location to investigate armed and masked observers wearing body armor.”

In his order denying the TRO, the Judge said the men had not made “true threats.” But even assuming that some of the activity might be constitutionally protected (say, one or two individuals’ silent presence near a drop box), and some activities might be lawful albeit not constitutionally protected (say, photographing voters or their license plates), what part of the First Amendment protects large groups of men with guns and body armor who surround a drop box and personally accost voters with accusations of fraud?  We ask this question because the judge seemingly failed to understand that the Supreme Court has held that voting is the exercise of the voter’s First Amendment free speech and free association rights. Judge Liburdi failed to give any consideration to the voters’ First Amendment rights to vote, instead simply bowing down to armed, masked men who hid behind the First Amendment to intimidate voters.  Again, what a disgrace! Voting places shouldn’t be like the Wild West.

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I appreciate Gerry and Armand’s well-placed outrage at a judge who looked this situation in the face and reached this result. The courts are supposed to defend our most basic rights. But here, Judge Liburdi focused on the 1st Amendment rights of armed men who were photographing and harassing voters, ruling they mattered more than the rights of people trying to vote. Next stop for this case will be an appeal to the 9th Circuit Court of Appeals, which will have the opportunity to fix it.

In this meantime, the second case, also assigned to Judge Liburdi, was proceeding. DOJ weighed in before the court ruled, with Kristen Clarke, the Assistant Attorney General for the Civil Rights Division, filing a statement of interest. The United States has statutory authority to file statements like this pursuant to 28 U.S.C. § 517, which authorizes the Attorney General to weigh in on cases that impact the interests of the United States and help the court understand how the law should work. You can read the entire statement here. It clarifies DOJ’s view that Section 11(b) of the Voting Rights Act prohibits intimidation and attempted intimidation of voters trying to vote at ballot drop boxes and that the court can grant relief, so long as its narrowly tailored to be consistent with the First Amendment rights of people observing the drop off process.

The lawyers at Protect Democracy, which represents the League of Women Voters, were busy assembling the evidence. It appears that it was the evidence they were able to put in front of the court in the second case that persuaded Judge Liburdi to reach a different outcome. The League requested an injunction to stop the voter intimidation and attached affidavits that set forth such serious claims that the Judge ordered a hearing, which took place today.

I’m told that the testimony was very powerful. Voters talked about how frightening it was to have people, sometimes displaying arms, videotaping them and their vehicle license plates. Some of them were accused of “ballot harvesting” because they were dropping off more than one ballot (which is legal under Arizona law). There was witness testimony that the intimidation was so severe that some witnesses would never use a drop box again. Other witnesses said they heard about the intimidation and were deterred from trying to vote. In other words, the evidence established actual intimidation. Protect Democracy lawyers Orion Danjuma and Rachel Homer did an enormously skillful job of eliciting witness testimony and arguing the case to the judge, who they convinced to rule differently than he had in the earlier case.

This evening, the Court entered a temporary restraining ordering prohibiting the defendants and people associated with them from coming within 75 feet of a drop box and from entering buildings where they’re located. They may not follow individuals who are going to drop off ballots and they may not speak (or yell) at them unless they are spoken to (or yelled at) first, once the voter is within the 75-foot margin. They can’t photograph or record them. They cannot dox them.

The order also prohibits observers associated with the group from posting identifying images or information about voters online and from putting out false information about election law until the election is over.

The judge imposed stricter rules for people who are armed or wearing body armor—they can’t go within 250 feet of a drop box.

The best part of the order requires the group to post, both on their website and on their Truth Social page, accurate information about Arizona drop box voting laws and a copy of the court’s orders. I’m imagining a lot of heads exploding when they’re told…the truth. And the individual defendant, Melody Jennings, who founded Clean Elections USA, is also required to take steps to provide truthful information to her followers, which she must leave up through the end of the election:

The Judge’s order in the second case provides important protections for voters. But it’s worth noting that one of the original defendants in this case, a group called the Lions of Liberty, is no longer a part of the case. They stood down their “Operation Drop Box” after the lawsuit was filed and issued this statement:

They emailed the statement to their volunteers and went into court to officially represent they would no longer intimidate voters. In other words, the litigation worked. It worked efficiently and quickly, thanks to the dedication and strategy of former Obama-era assistant White House counsel Ian Bassin who helms Protect Democracy. Sometimes we get frustrated by how slowly the wheels of justice seem to turn. But other times, here, filing a lawsuit accomplishes important work in record time.

I’m grateful Gerry and Armand shared their views with us. I’m grateful to the lawyers at Protect Democracy who pursued the League of Women Voters case despite the loss in the earlier one, and put a stop to the egregious intimidation. All over the country, there are dedicated civil rights and voting rights lawyers working on behalf of us and of the rule of law. Lawyers used to be the butt of some good jokes, but in a world where everything is topsy-turvy, the lawyers have become heroes. Could we be living in any stranger of a timeline?

We’re in this together,

Joyce