WASHINGTON, D.C. — On Monday, Oct. 31, the U.S. Department of Justice (DOJ) submitted a statement of interest in a federal lawsuit against several Arizona groups that have engaged in alleged voter intimidation. A statement of interest outlines the United States’ position regarding an ongoing lawsuit in which the DOJ isn’t a party; in this case, the statement was signed by Kristen Clarke, the assistant attorney general for the DOJ’s Civil Rights Division. The DOJ’s statement was submitted in League of Women Voters of Arizona v. Lions of Liberty, a lawsuit filed last week against the Lions of Liberty, the Yavapai County Preparedness Team (a branch of the extremist Oathkeepers), Clean Elections USA and these groups’ members. The lawsuit alleges that these right-wing groups “have launched two parallel schemes to surveil, harass, and intimidate voters at drop boxes to deter them, and those who are lawfully assisting voters, from exercising the right to vote.” The lawsuit came soon after the Arizona secretary of state referred several reports of voter intimidation to the DOJ.
In League of Women Voters of Arizona v. Lions of Liberty, the plaintiffs allege that the actions by the right-wing vigilantes violate Section 11(b) of the Voting Rights Act (VRA) and the Ku Klux Klan Act. In its statement of interest, the DOJ focuses on Section 11(b) and provides illustrative examples of “Section 11(b)’s appropriate application to protect voters from threats, intimidation, and coercion.” The DOJ clarifies several different aspects of the VRA provision: First, voter intimidation claims should be viewed within the greater context of what’s going on in the state. Second, voters do not have to be intimidated to find liability under 11(b); instead, creating an environment of fear or concerns about intimidation is sufficient. Third, the DOJ states that using a drop box is covered by Section 11(b)’s understanding of “voting.” Finally, the statement addresses the concerns that relief could run afoul of the First Amendment; however, the DOJ notes that election vigilantism is not lawful assembly and that the government has a compelling interest in preventing voter intimidation.
“Video recording or photographing voters during the voting process, for example, has long been recognized to raise particularly acute concerns under Section 11(b),” the statement reads. “Courts have identified similar issues with efforts to track or follow voters; ascertain and record voters’ personal information; obstruct, accost, question, or challenge voters; target discrete groups of voters based on identity or political affiliation; or monitor voting sites while armed or outfitted in military- or police-style uniforms.”
Last Friday, in a separate voter intimidation lawsuit in Arizona, a federal judge declined to issue a temporary restraining order and preliminary injunction that would have prevented Clean Elections USA and its supporters from monitoring drop boxes in Arizona during the midterm elections. This decision has already been appealed to the 9th U.S. Circuit Court of Appeals. The League of Women Voters lawsuit is also ongoing, though two of the named defendants abandoned their plans, writing that “Operation Drop Box is officially Closed” in response to the litigation. A hearing on the plaintiffs’ motion for a temporary restraining order and preliminary injunction is scheduled for Tuesday, Nov. 1.