PHOENIX — An attorney for the founder of Clean Elections USA asked a federal judge Wednesday to dismiss a bid to restrain her ability or those of its members to monitor drop boxes in Arizona.
Veronica Lucero said the request by Arizona Alliance for Retired Americans and Voto Latino is overly broad, seeking to bar activities that are constitutionally protected. She told U.S. District Court Judge Michael Liburdi that any such efforts must be considered under a “strict scrutiny” standard.
That requires those seeking to limit the actions of others must show not just a compelling need for such an order, but also that it is narrowly tailored to be the least restrictive way to deal with the problem.
And the limits the group seeks on Clean Elections USA, Lucero said, go beyond that, seeking to prevent lawful activities like monitoring drop boxes from at least 75 feet away and photographing those who use the boxes.
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But Lucero also told the judge there’s a more basic reason he should throw out the case. She said there is no evidence that Clean Elections USA or its founder, Melody Jennings, are actually involved in any of the cases of voter intimidation that are occurring in Arizona.
“Plaintiffs have gathered together some internet postings,” Lucero said, acknowledging that Jennings has urged followers to monitor drop boxes.
“They have pointed to some complaints of voter intimidation,” she continued. “But there’s no connection between that and the defendants’ actions, Ms. Jennings and her organization which is unaffiliated, doesn’t have legal status.”
Lucero even got Saundra Cole, president of the Arizona Association of Retired Americans, to admit on the stand that she has no proof that anyone who has been approaching voters in Maricopa County is associated with Clean Elections USA. Ditto Ameer Patel, vice president of Voto Latino.
And Mesa resident Jenea Phillips, who filed a complaint with the Secretary of State’s Office about being photographed while dropping off her ballot outside the Maricopa County Juvenile Court Center, also said she could not say who was responsible.
Lucero did not dispute that Jennings has said, both in social media postings and interviews, that people should monitor drop boxes to look for “mules” — people illegally putting multiple ballots into the boxes. But she said that Jennings has done nothing wrong.
“She has not advocated for any kind of voter intimidation,” Lucero told the judge. And she said nothing that Lucero or members of Clean Elections USA have done violate either the 1965 Voter Protection Act or the 1871 Ku Klux Klan act, both of which make voter intimidation illegal.
Fox, however, presented a string of videos and social media posts where Jennings speaks specifically of activities in Arizona. And that includes an Oct. 19 photo posted by Jennings of three people she describes as “our beautiful box watchers in Maricopa County.”
He also showed the judge videos from ABC-15 where box watchers told reporter Nicole Grigg that they were with Clean Elections USA.
That leaves it up to Liburdi, who said he is hoping to have a ruling by Friday, to decide whether there is sufficient evidence linking Jennings and her group with activities outside the drop boxes. But even if he does, the judge questioned whether he can issue an order that could affect the constitutional rights of those monitoring drop boxes.
“The First Amendment protects speech, protects the right to lawfully assemble, protects some degree of conduct,” Liburdi said.
And he pointed to a ruling last month by U.S. District Court Judge John Tuchi prohibiting the state from enforcing a law that would have made it a crime for individuals to take videos within eight feet of police activity.
“Why, for example, would it be unconstitutional to prohibit somebody from filming a law enforcement officer, would it be constitutional for me to enjoin individuals dropping ballots off?” Liburdi asked.
Fox said the situations are different.
“We can reasonably understand that police officers have a thicker skin given the job they signed up for,” he told the judge. “That’s a different situation than voters who are people just exercising their civic duty to vote.”
And Fox said there’s something else.
He noted that even Jennings acknowledged in interviews that this is about more than simply taking pictures of those who are using the drop boxes. Instead, she is quoted as saying that at least part of the purpose of having people near drop boxes — and being very visible — is to deter “mules” from putting multiple ballots into the boxes.
Only thing is, Arizona law does allow individuals to deliver more than their own ballots. Exceptions to what has been called the “ballot harvesting” law includes handling the ballots of a spouse, members of the same household and even caregivers.
And Fox said that rises to the level of intimidating people and keeping them from using the drop boxes.
Conversely, Liburdi questioned Lucero about the things that have happened in Arizona. That includes Jennings having publicly posted pictures of the license plates of those who have shown up to deposit their ballots at drop boxes.
Lucero, however, said that’s not necessarily breaking any law.
“They’re not trying to prevent anyone from voting,” she said, at least not legally. Instead, Lucero said, the aim is to go after the “mules.”
“Defendants openly wish to deter this illegal behavior, not lawful voters,” she said. And Lucero cited statements by Jennings telling box watchers to “follow the law.”
Wednesday’s hearing came as Fox agreed to scale back what he is seeking in a court order — assuming Liburdi agrees with his arguments.
He dropped his request that the judge bar members of Clean Elections USA from gathering within sight of drop boxes. That followed comments from the judge at a Tuesday hearing that he wouldn’t approve anything that would violate the constitutional rights of people to gather on public streets.
But the new proposal may be similar.
Now, Fox wants Liburdi to prohibit organization members from gathering in groups of more than two within 250 feet of drop boxes.
He still wants an order barring anyone from Clean Elections USA from following, taking photos of or otherwise recording individuals returning ballots to a drop box. But gone is a bid to extend that prohibition to taking pictures of the vehicles used by voters.
But now there’s something new. Fox now wants Liburdi to preclude people from posting online any images or personal information about people who use drop boxes.
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Howard Fischer is a veteran journalist who has been reporting since 1970 and covering state politics and the Legislature since 1982. Follow him on Twitter at @azcapmedia or email [email protected].
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