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Arizona ballot box watchers can't take photos, must stay 250 feet back

People deposit their mail-in ballots for the U.S. presidential election at a ballot collection box in Phoenix on Oct. 18, 2020.
Robyn Beck/AFP via Getty Images
People deposit their mail-in ballots for the U.S. presidential election at a ballot collection box in Phoenix on Oct. 18, 2020.

By Howard Fischer
Capitol Media Services
PHOENIX -- Clean Elections USA will not appeal a late Tuesday ruling by a federal judge blocking most of what they can do while watching ballot boxes in Arizona.
The move ends any litigation against the group by the League of Women Voters which got Judge Michael Liburdi to issue a temporary restraining order barring everything from taking pictures of people dropping their ballots into the boxes to prohibiting anyone who is openly armed or dressed in body armor from being with 250 feet of the drop boxes.
But the decision is not one sided.
In exchange, attorneys for the Arizona Alliance for Retired Americans have agreed to drop their request that the 9th Circuit Court of Appeals issue an emergency order granting the relief they sought against Clean Elections USA in a separate lawsuit, a ruling that did not go their way.
Most of the issues effectively were resolved with the Tuesday temporary restraining order.
But that order did not cover something that AARA had sought and that Liburdi never granted: a prohibition against members of Clean Elections USA from gathering "within sight of drop boxes,'' whether armed or not, or whether taking photos or not.
In fact, the Tuesday order does not impair members of the organization continuing to monitor drop boxes as long as they are at least 75 feet away and as long as they do not take videos of those within that perimeter.
There's also something else of note.
Liburdi's restraining order affects only that activities of members of Clean Elections USA and its founder, Melody Jennings. It does not -- and cannot -- bar similar acts by other individuals or organizations as they were not named as defendants in either lawsuit.
It remains to be seen, though, whether others who claim to be watching for "mules'' dropping off more ballots than allowed by Arizona law -- the claim that Jennings made about why members of her organization were monitoring the boxes -- now will take up the actions that she and her group are now prohibited from doing.
Wednesday's deal points up the difference between the two lawsuits.
Both sought to restrain various actions by Clean Elections USA, though the relief sought differed.
But Liburdi tossed the AARA action saying the group presented no evidence that any voter actually had been threatened or intimidated. Absent that, the judge said, he had to side with the First Amendment rights of individuals to not only monitor drop boxes but even to take videos of people pulling up to the boxes and dropping in their ballots.
By contrast, lawyers for Project Democracy, representing the League of Women Voters, brought witnesses to court on Tuesday detailing what they described as being placed in fear due to the activities of the box watchers. Other witnesses, members of LWV, told the judge they were afraid to approach the boxes to drop off their ballots.
And there was something else.
Liburdi noted Tuesday that Jennings herself put up posts on social media saying it was the intent of her organization to intimidate those who would violate Arizona's "ballot harvesting'' law. And, potentially more significant, she identified those pictured who were monitoring the boxes as belonging to her group, undermining claims by her attorneys there was no evidence linking her or Clean Elections USA to the activities.
The judge said he was not minimizing the First Amendment rights of people to "gather on a public sidewalk and watch at a distance.'' But Liburdi said that needs to be balanced against the right of people to vote without fear and intimidation.
"I believe that the temporary restraining order achieves that purpose,'' he said.
In agreeing to drop its emergency request to the 9th Circuit, AARA President Saundra Cole said that was no longer necessary.
"The temporary restraining order (issued by Liburdi in the League case) covers the harassment and intimidation tactics we were primarily concerned about,'' she said in a prepared statement.
Cole did not address the fact that Liburdi refused to give her organization the broader relief it sought to prohibit members of Clean Elections USA from even gathering within sight of the drop boxes. But it likely would have been difficult to get such an order absent some showing that the mere presence of box watchers, deprived of their ability to video voters, is in some way intimidating.
Of note is that while Cole's organization is dropping its bid for that emergency order, it is not withdrawing it appeal. That paves the way for the federal appellate court to look at the issue of what is and is not allowed around ballot boxes ahead of the 2024 election.
"Recent Arizona history tells us that there may be more challenges to our democracy,'' Cole said, saying her group "will continue to do whatever we can to ensure all older voters can make their voices heard at the ballot box.''
And a spokesman for Project Democracy said its lawyers are "still considering all their options'' about whether to pursue more than the 14-day restraining order that Liburdi issued.
In ruling in favor of the League, Liburdi did more than restrain their ability to videotape voters and be within 250 feet of ballot boxes if visibly armed. It also bars group members from speaking to or yelling at individuals who are returning their ballots to a drop box unless they are spoken to or yelled at first.
His order also prohibits members of Clean Elections USA from posting images of or identifying voters with claims they are violating state law solely because they deposited more than one ballot in a drop box. The judge pointed out that state law does permit individuals to handle not only their own voted ballots but also those of family members, those in the same household and for those for whom they are caregivers.
And Liburdi also ordered Jennings to post a statement on Truth Social, a media platform linked to former President Trump, saying that any past statements she made claiming it is illegal to deposit more than one ballot in a box are "incomplete.''
On Twitter: @azcapmedia