WASHINGTON, D.C. — On Tuesday, Nov. 1, a federal judge for the U.S. District Court for the District of Arizona held a hearing in a lawsuit filed by the League of Women Voters of Arizona (the League) challenging instances of alleged voter intimidation by Clean Elections USA (a right-wing group behind vigilante drop box monitoring in Arizona) and its founder, Melody Jennings. The lawsuit was consolidated with a similar lawsuit filed by the Alliance for Retired Americans of Arizona (the Alliance) and Voto Latino, in which the same judge previously denied these groups’ motion for a temporary restraining order and preliminary injunction seeking to prevent Clean Elections USA from monitoring drop boxes in Arizona during the midterm elections. During yesterday’s hearing regarding the League’s motion for a temporary restraining order and preliminary injunction, the judge heard powerful testimony from seven different witnesses, each of whom recounted their experiences of being subjected to voter intimidation and harassment at the hands of Clean Elections USA and its supporters. At the conclusion of yesterday’s hearing, in a major win for voters, the judge issued a temporary restraining order that prevents Clean Elections USA and its supporters from engaging in certain drop box monitoring activities in Arizona.
Yesterday’s hearing, which lasted for almost six hours, began with brief statements from both the plaintiff’s attorney representing the League and the defendants’ attorney representing Clean Elections USA and Jennings. The attorneys for both the plaintiffs and defendants expressed that they had come to a partial agreement, but that they needed to work out certain outstanding issues — such as whether Jennings could be required to refrain from making false statements about voter eligibility in the future and whether taking photos and videotaping voters within a certain distance of a drop boxes was permissible — with the court before reaching a final agreement. The plaintiffs’ attorney then called witnesses.
First, the court heard from Pinny Sheoran, the current president of the League. Sheoran testified that, in response to news and media reports of drop box monitoring by Clean Elections USA and its supporters, the League had to divert the work of volunteers and interns from registering and educating voters to creating messaging for voters regarding election protection to ensure that voters know their rights at drop boxes and can stand up to potential intimidation. Sheoran noted that the League has had to spend approximately $3,000 due to the issues raised by the defendants’ conduct. She stated that the League’s core mission of “empowering voters is frustrated if voters are afraid to vote.”
Next, the court heard from the plaintiff’s second witness — referred to as Complainant 240 — who wished to remain anonymous out of fear of being doxxed (identified by name on the internet). Complainant 240 testified that when he and his wife went to deposit their ballots at a drop box outside of the Mesa Juvenile Court on Oct. 17, they noticed a group of eight to 10 people adjacent to the drop box filming and photographing them. He explained that he and his wife felt “shocked” and “intimidated” by the group. Nonetheless, Complainant 240, determined to vote, stated that he tucked his and his wife’s ballots under his shirt (to prevent the monitors from photographing the ballots, which contained their names and addresses) and deposited the ballots into the drop box. On his way back to his wife’s car, the witness said that he was asked by one of the monitors if he “was a mule” because the group was “hunting mules” who were engaging in “ballot harvesting,” after which he testified that he was temporarily followed by one of the drop box monitors as he and his wife drove out of the parking lot. Additionally, when asked if he knew about this intimidation prior to casting his ballot at the drop box, Complainant 240 answered that he had indeed heard about it through news stories. He also mentioned that he knew of several state legislators, including current secretary of state candidate Mark Finchem (R), who were requesting that people watch drop boxes and monitor them for “ballot mules.” The witness stated that following this confrontation with the drop box monitors, he filed an incident report with the Arizona secretary of state’s office and felt hesitant about using a drop box in the future, knowing that he could again be subject to harassment and intimidation.
Subsequently, the court heard from the plaintiff’s third witness, Leslie Hanson, who is also a member of the League. Hanson stated that she had originally planned to vote by mail this year, but decided against using a drop box to return her ballot because the option felt “unsafe” after seeing reports of drop box monitors in tactical gear. She remarked that “it’s disconcerting and unsettling to know that there are people watching you and thinking that you’re violating the law and they’re armed.”
The court then heard from the plaintiff’s fourth witness, Lois Hason, a member of the League, who said that she was deterred from voting via drop box in this year’s election because she understood that some drop box watchers were armed and taking photos of license plates. She said she feared that someone would learn her identity and approach her property. She added that she was concerned about doxxing and threats to her safety that could arise if she chose to vote via drop box.
Next, the court heard from Lorna Banister, another member of the League, who, similar to some of the previous witnesses, said that she had planned to return her mail-in ballot via drop box this year, but decided against it after learning about the armed drop box monitors. She added that the prospect of having people photograph her while voting “scared” her and “was intimidating.” She also stated that she was “scared someone might follow her home” and that she “feared for her personal safety.”
Next, the court heard from Don Overlock, a voter from Mesa, Arizona. He testified that he and his wife went to drop off their mail-in ballots at a drop box when they saw men behind their car taking pictures. Overlock stated that these people identified themselves as “election integrity” people and later that day, he filed a complaint with the Arizona secretary of state’s office. During cross examination, the defendants’ attorney asked if Overlockwould mind if people were taking photos of him in a different circumstance, to which he replied that he was worried because they were taking photographs of his license plate.
Finally, the court heard from the plaintiff’s seventh and final witness, Daniel Rivera, a voter from Tempe, Arizona. Rivera testified that he and his wife brought their ballots and their son’s ballot to a drop box, but upon arrival noticed a man with a camera pointed at Rivera’s car. He stated that his wife was already nervous and she would not have dropped off her ballot if her husband was not there with her. Rivera mentioned that he was concerned about his information being posted on the internet and that he reported the incident to the Arizona secretary of state’s office.
After hearing from witnesses, the plaintiff’s attorney summarized the case for the court. The plaintiff’s attorney argued that Jennings committed to “a campaign of harassment and doxxing.” The attorney spoke to the judge’s First Amendment concerns, stating that “the First Amendment is not a shield for voter intimidation,” and explained how the defendants’ behavior closely tracks with historical instances of voter intimidation.
The defendants’ attorney then argued that blocking the defendants’ actions would be barred by the Purcell principle (the idea that courts should not change voting or election rules too close to an election in order to avoid confusion for voters and election officials alike), to which the judge noted that Purcell controls election processes, not behavior. The defendants’ attorney also argued that if “the only thing that matters is a subjective feeling, [then one could argue that] The Washington Post is intimidating voters.” He closed by arguing that his client merely wishes “to convey the message that unlawful voters should think twice” before engaging in allegedly unlawful activity such as “ballot harvesting.”
At the conclusion of the hearing, the judge read a temporary restraining order into the record. The order states: “The defendants may not train, organize, encourage or direct others to monitor drop boxes; the defendants may not go within 75 feet of drop boxes or the entrance where a drop box is located and, unless a voter talks to them first, the defendants are not allowed to speak to or yell at a voter first. The defendants also may not openly carry firearms or wear body armor within 250 feet of a drop box. Melody Jennings, the founder of Clean Elections USA, is instructed to post on Clean Elections USA’s website and her Truth Social page that it is not always illegal to deposit multiple ballots in a drop box as well as post a copy of the relevant laws and a link to the judge’s forthcoming written order.” The order will be in effect for 14 days and is a win for Arizona voters who can rest assured that they will not have to face intimidation and harassment at drop boxes from now through Election Day.