Federal judge rejects emergency injunction in Arizona ballot drop box monitor lawsuit

U.S. District Court Judge Michael Liburdi will not approve an emergency injunction to stop ballot drop box monitors from gathering outside Arizona voter locations.

The federal judge's decision comes days after two voting rights groups filed a legal challenge targeting conservative group Clean Elections USA, which has organized drop box surveillance in the Phoenix area, and its founder, Melody Jennings.

The Arizona Alliance for Retired Americans, a progressive grassroots organization that supports seniors' issues, and Voto Latino, a nonprofit focused on getting out the young Latino vote, claimed in court documents that Jennings coordinated a "campaign of vigilante voter intimidation."

The groups argued that a quick decision on the emergency order was necessary, with voting underway and Election Day fast approaching.

Jennings, who lives in Oklahoma, was not present during a Wednesday court hearing. Veronica Lucero, an attorney representing Jennings, said the proposed emergency order is too broad and would violate Jennings' rights.

Liburdi wrote in his decision that he struggled to "craft a meaningful form of injunctive relief that does not violate Defendants’ First Amendment rights and those of the drop box observers."

"While there are serious questions implicated, the Court cannot provide preliminary injunctive relief without infringing core constitutional rights," he wrote. "A preliminary injunction cannot issue on these facts, but Arizona Alliance is invited to return to this Court with any new evidence that Defendants have engaged in unlawful voter intimidation."

Liburdi also ordered that Voto Latino be removed from the suit, saying they have "not shown any other concrete or particularized injury."

The lawsuit continues despite his decision. Liburdi ordered the court clerk to keep the case open and attorneys with the Arizona Alliance of Retired Americans said on Friday they will appeal.

A separate, but similar, lawsuit was filed Tuesday by Protect Democracy on behalf of the League of Women Voters of Arizona. In addition to Clean Elections USA, it named Lions of Liberty, a right-wing group in Yavapai County. That group said Thursday that it would halt monitoring outdoor ballot drop boxes in response to the legal challenge.

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Liburdi also will judge that case.

Protect Democracy spokesperson Emily Rodriguez said Friday that the case has a "different set of facts" from the Arizona Alliance of Retired Americans lawsuit, including declarations from several impacted voters.

"We're hoping we'll be able to convince the judge that it is worth considering," she said.

First Amendment rights play big role in decision

In court, lawyers for Voto Latino and the Arizona Alliance of Retired Americans said Jennings' First Amendment rights wouldn't be infringed upon by the injunction because she was simply trying to intimidate voters, not send a clear public message.

"There's no evidence that they intend to express any understandable message," attorney David Fox said in court.

Liburdi disagrees in his decision, saying that Jennings' social media posts demonstrate that she and the observers hope to convey a message to "these supposed 'ballot mules.'"

"The message is that persons who attempt to break Arizona’s anti-ballot harvesting law will be exposed," Liburdi wrote. "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."

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True threats are not protected free speech in the United States, and Fox argued that Jennings' rights couldn't be trampled in this case because her speech was threatening. But Liburdi said Jennings hasn't made any statement "threatening to commit acts of unlawful violence to a particular individual or group of individuals."

"There is no evidence that Defendants have publicly posted any voter’s names, home addresses, occupations, or other personal information," he wrote. "In fact, Jennings continuously states that her volunteers are to 'follow laws.'"

Liburdi wrote that there's also no evidence that the voters using the county's outdoor drop boxes are primarily members of groups that have historically been victims of targeted violence.

"The Court acknowledges that Plaintiffs and many voters are legitimately alarmed by the observers filming at the County’s early voting drop boxes," Liburdi wrote. "But on this record, Defendants’ conduct does not establish a likelihood of success on the merits that justifies preliminary injunctive relief. Alternatively, while this case certainly presents serious questions, the Court cannot craft an injunction without violating the First Amendment."

Parties react

The Arizona Alliance of Retired Americans said in a statement that Liburdi's decision was "truly disappointing."

"We continue to believe that Clean Elections USA’s intimidation and harassment is unlawful," the statement read. "We urge all older Arizonans not to be deterred and return their ballots before the deadline, or vote in person on Election Day."

Lucero could not be immediately reached for comment. Jennings posted on social media that "the Constitution won today."

"This battle is not over, but today was a step for freedom and for your 1st amendment rights being preserved," she wrote on Truth Social, a right-wing social media site.

She also encouraged Arizonans to go vote.

"If you so choose to vote at a drop box, box watchers may be at the boxes where you go," she wrote. "Wave and thank them for protecting your freedom."

Sasha Hupka covers Maricopa County and regional issues for The Arizona Republic with a focus on voting and democracy. Do you have a tip about elections or questions about voting? Reach her at sasha.hupka@arizonarepublic.com. Follow her on Twitter: @SashaHupka.

This article originally appeared on Arizona Republic: Arizona judge rejects emergency injunction in ballot drop box case