WASHINGTON, D.C. — On Friday, Oct. 28, a federal judge declined to issue a temporary restraining order and preliminary injunction that would have prevented Clean Elections USA (a right-wing group behind vigilante drop box monitoring in Arizona) and its supporters from monitoring drop boxes in Arizona during the midterm elections. On Monday, Oct. 24, the Arizona Alliance for Retired Americans and Voto Latino filed a lawsuit against Clean Elections USA, its affiliates and unidentified individuals challenging the organization’s voter intimidation practices in Arizona. In their complaint, the groups allege that there were at least five instances last week where Clean Elections USA supporters “gathered at ballot drop boxes in Maricopa County with the express purpose of deterring voters.” The plaintiffs argue that Clean Elections USA’s alleged “coordinated campaign of vigilante voter intimidation” practices violate both the Voting Rights Act (VRA) of 1965 and the Ku Klux Klan Act of 1871. On the same day that they filed the lawsuit, the plaintiffs filed a motion for a temporary restraining order and preliminary injunction asking the court to prohibit the defendants 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.” Today, a federal court declined to grant the requested relief, meaning that Clean Elections USA and its affiliates will not be prevented from intimidating voters attempting to vote via drop boxes in Arizona during the 2022 midterm elections. By refusing to grant the sought relief, this order stands to potentially embolden not only Clean Elections USA and its affiliates but other right-wing vigilante groups across the country.
This ruling comes after a hearing in which the plaintiffs, the Arizona Alliance for Retired Americans and Voto Latino, argued that Clean Elections USA would harm voters if the group’s actions were allowed to persist. In his order today, the judge cited First Amendment concerns, finding that “[t]he requested preliminary injunctive relief implicates serious First Amendment considerations. An individual’s right to vote is fundamental. But so too is an individual’s right to engage in political speech, assemble peacefully, and associate with others.” The judge concluded that the defendants’ intent was not to prevent people from voting but rather “to prevent what [the defendants] perceive to be widespread illegal voting and ballot harvesting.” On this point, the judge wrote that the message that Clean Elections USA hopes to convey is “that persons who attempt to break Arizona’s anti-ballot harvesting law will be exposed. On this record, therefore, the Court finds that a reasonable observer could interpret the conduct as conveying some sort of message, regardless of whether the message has any objective merit,” which falls under the protection of the First Amendment. During the hearing, the plaintiffs’ attorney addressed the judge’s First Amendment concerns, arguing 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.”
While the judge found that the “Defendants’ conduct does not fall into any traditionally recognized category of voter intimidation” and there was no “evidence that Defendants’ conduct constitutes a true threat,” he “acknowledge[d] that Plaintiffs and many voters are legitimately alarmed by the observers.” In the end, though, the judge decided this alarm does not constitute grounds for an order temporarily preventing the defendants from further engaging in this behavior. The plaintiffs have already appealed this decision to the 9th U.S. Circuit Court of Appeals.