WASHINGTON, D.C. — On Wednesday, Oct. 26, a federal judge for the U.S. District Court for the District of Arizona held a hearing in a case challenging instances of alleged voter intimidation by Clean Elections USA (a right-wing group behind vigilante drop box monitoring in Arizona) and its supporters over the past week. Shortly after filing the lawsuit, the plaintiffs — the Alliance for Retired Americans of Arizona (“the Alliance”) and Voto Latino — filed a motion for a temporary restraining order and preliminary injunction that would prevent Clean Elections USA and its supporters from engaging in voter intimidation activities in Arizona. Yesterday the judge heard arguments from the plaintiffs as to why Clean Elections USA and its affiliates should be prevented from “gathering within sight of drop boxes; from following, taking photos of, or otherwise recording voters or prospective voters, those assisting voters or prospective voters, or their vehicles at or around a drop box; and from training, organizing, or directing others to do the same” and arguments from the defendants as to why they should not be subjected to such an injunction.
The hearing began with brief statements from both the plaintiffs’ attorney representing the Alliance and Voto Latino and the defendants’ attorney representing Clean Elections USA and its founder Melody Jennings. The defendants’ attorney made two main arguments: Clean Elections USA and Jennings are not responsible for voter intimidation in Arizona and, regardless, “innocent people believe that they need to observe the drop boxes.” The plaintiffs’ attorney then called witnesses.
The court heard testimony from four witnesses: Saundra Cole, Dora Vasquez, Ameer Patel and Jenea Phillips. Cole, the president of the Alliance, testified that the Alliance is focused on “making sure that we can get to the polls and do our rights as a public to vote.” She noted that most of the Alliance’s membership are senior citizens between 60 and 90 and that about 75% of the Alliance’s membership votes by mail. She stated that voter intimidation could impact the Alliance: “Well, [it’s] intimidating…and taking pictures of you, or your car or anything and so seeing that on the media…people are kind of stepping back and going well, maybe it might not be safe for me to go out and vote.” She noted that many members of the Alliance use drop boxes since “they can drive up to the drop box” “instead of having to stand in line for hours at the polling” place.” On the topic of voting in general, she stated that “it’s our right, we’ve done it for many many years and then all of a sudden people are asking us are not asking that kind of intimidating approaching us you know at the ballot box, drop off box and that and that’s never happened before up here…It’s very, very intimidating.” The defendants’ attorney then cross examined Cole. The attorney asked Cole if she knew if Clean Elections USA is responsible for the alleged intimidation. Cole responded by noting that she has seen information about voter intimidation in the media.
Next, the court heard from Vasquez, the director of the Alliance. She explained that, in her position, she and the Alliance assist, educate and turn out voters. Vasquez noted that seniors will “be afraid to go and vote for fear and intimidation. So, if necessary, well I’m going to have to divert our resources” in the wake of voter intimidation. She followed up by stating concerns about drop box monitors: “So when we say…you can’t go [to] that drop box, because someone might be taking a picture of our car, they might follow me and something might happen to me, what if they follow me home?” She explained that the Alliance hasn’t had to deal with intimidation in the past, but worries now that people will not go vote as a result. She noted that the Alliance may have to alter phone bank scripts and divert resources to address voter intimidation. She was then cross examined and the defendants’ attorney again asked if the witness was sure that the defendants were intimidating voters. Vasquez responded “yes, I believe it was posted on social media.” The defendants’ attorney asked a few more questions and Vasquez was dismissed.
Next, the court heard from Patel, the vice president of programs for Voto Latino. Patel testified that Voto Latino educates, registers and turns out voters, specifically focusing on Latino, low-propensity and young voters. He explained that Voto Latino might have to shift messaging to avoid voter intimidation, which would be an expensive undertaking. He was cross examined by the defendants’ attorney, who asked Patel if he had direct knowledge that the defendants in the case intimidated members of Voto Latino. Patel responded that Voto Latino “is not a member-based organization.” The defendants’ attorney asked if Voto Latino would have to divert resources regardless of who was behind the voter intimidation practices, to which Patel responded “yes, absolutely.”
The last witness the court heard from was Jenea Phillips, a stay-at-home mom who lives in Arizona. Phillips described an incident she experienced when attempting to drop off her ballot at a drop box that she later reported to the Arizona secretary of state’s office. She said she was concerned about bringing her ballot to a drop box after hearing reports about people watching the drop boxes and taking pictures of photos and their cars. She said she “had heard the news of individuals showing up with body armor or weapons and sitting and recording voters” and chose to go to a drop box located at a courthouse because she thought it “could be a more secure location.” When she arrived, she “took a look at her surroundings” and after she dropped off her ballot she “noticed…a car running nearby” that was “ pointed toward the drop box.” She reported seeing a phone under the visor of the car and decided to get the information of the vehicle to report it. She expressed being concerned if people “could figure out where I was and show up at my house.” When asked by the plaintiffs’ attorney why she was concerned, she said “I should be able to vote without having photos or video. [I] was also concerned where that would be shared.” When asked if she would be concerned if she showed up to vote and there was someone standing with a weapon, Phillips replied “definitely…I would not have chosen to vote.” The plaintiffs’ attorney asked if Phillips would feel safer if the court issued an injunction; she replied “definitely.” Phillips explained that she told the sheriff’s office about the incident, but the sheriff told her that as long as the watchers were outside of the 75 foot radius around the drop box, they could not do anything. Phillips stated that the sergeant with the Mesa Police Department did not know “that it was illegal for the vehicle to be within 75 feet and still recording.” Phillips further explained that, at that point, she filed a complaint with the secretary of state’s office. When asked why she filed a complaint with the secretary of state’s office over the incident, Phillips replied “I don’t want other people to feel intimidated in the same way that I did .” The defendants’ attorney then asked if Phillips was still able to vote; she responded that she was. The defendants’ attorney asked if Phillips was aware “that Arizona law allows people to gather some 75 feet away from the polling place;” Phillips replied yes.
The plaintiffs’ attorney asked to admit additional evidence; the defendants’ attorney objected based on relevancy, but the judge admitted the evidence. The plaintiffs’ attorney walked the judge through why they argued that Clean Elections USA is responsible for these instances of voter intimidation. The plaintiffs’ attorney presented videos and social media posts connecting the instances of voter intimidation to both Clean Elections USA and its founder Jennings. The plaintiffs’ attorney played a video from a local news reporter who interviewed drop box watchers accused of intimidating people. The reporter asked the people what group they were affiliated with. The watcher responds, “Clean Elections USA.”
The judge then asked the plaintiffs’ attorney some questions. The judge mentioned that a federal court recently blocked an Arizona law that prohibited the filming of police officers and asked how banning the filming of voters would be different. The plaintiffs’ attorney responded that there’s a clear difference between filming police officers while they’re conducting their job and filming individuals trying to vote. The plaintiffs’ attorney argued “there is clearly a threat of violence” associated with filming voters. The judge asked how he might be able to craft an order “without interfering with people’s First Amendment rights.” The plaintiffs’ attorney explained that there is “no evidence that [the drop box watchers] intended to express any understandable message. They wouldn’t talk to the press…what they’re trying to do is take photographs and scare people.” In response to the judge’s First Amendment concern, the plaintiffs’ attorney argued that an injunction would survive strict scrutiny because “the state has an interest in preventing voter intimidation.”
The judge then asked the defendants’ attorney a few questions. The defendants’ attorney argued that an injunction would chill “everyone’s” right to assemble. She then shifted away from the argument that the defendants were not responsible for the alleged intimidation to explain that the defendants “wish to deter” ballot harvesting. She also argued that Clean Elections USA has the right to peacefully assemble under the First Amendment. The judge asked if Jennings is providing training to watchers, to which the attorney said no. The judge countered that the people interviewed in reporters’ videos appear to have been trained. The defendants’ attorney then argued that a broad injunction would “infringe on people’s constitutional rights.”
The plaintiffs’ attorney gave closing remarks, summarizing that “voters, they’re scared, they’re scared to go to the polls in a dangerous situation, and it is a problem and people should be able to vote without that happening.” The judge stated that he will try to issue a ruling by Friday, Oct. 28.