Trump-appointed judge refuses to shut down far-right ‘voter intimidation’ at ballot drop boxes in Arizona

A federal judge has rejected a lawsuit against a far-right activist group accused of intimidating Arizona voters with the “express purpose” of blocking them from casting their ballots in drop boxes in the state.

US District Judge Michail T Liburdi, who was appointed by Donald Trump, declined a request for a restraining order against Clean Elections USA and its founder Melody Jennings, who encouraged volunteers to stake out ballot boxes and photograph voters in an effort fuelled by baseless allegations that the 2020 presidential election was marred by fraud.

Arizona Alliance for Retired Americans and Voto Latino argued in a 64-page federal complaint that the group violated the Voting Rights Act of 1965 and the Ku Klux Klan Act of 1871, which prohibits “conspiring to prevent, by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner.”

Several people were discovered filming voters and photographing their license plates outside ballot drop boxes where people can deposit their mail-in or absentee ballots. Armed men in tactical gear were also captured on surveillance footage staking out drop boxes in the state.

The judge’s ruling on 28 October argued that the plaintiffs failed to show that the defendants’ conduct “constitutes a true threat.”

Judge Liburdi said he cannot issue a preliminary injunction against Clean Elections USA without violating First Amendment protections. Arizona law allows people to gather 75 feet from a polling place.

The lawsuit requested a judge to block the group from organising supporters near drop boxes and from taking photos or recording videos of voters or the people assisting them.

Without that relief, “voters will be subjected to intimidation, threats, and perhaps even force or physical harm at the hands of vigilante drop box watchers,” according to the lawsuit.

Arizona Secretary of State Katie Hobbs has referred at least six incidents of alleged voter intimidation to federal law enforcement within the last week alone.

The US Attorney’s office in Arizona is considering “several federal felony charges from alleged criminal activity” in the state.

“We have a long history of civil dialogue and civic engagement here in Arizona, and we will vigorously safeguard all Arizonans’ rights to freely and lawfully cast their ballot during the election,” according to a statement on 26 October.

A separate lawsuit filed by the League of Women Voters also names Clean Elections USA as well as a group tied to the far-right anti-government militia group the Oath Keepers, which launched a separate poll-watching operation.

Conspiracy theorists and far-right activists have conflated voters using drop boxes with “mules” illegally hoarding ballots, or believe all forms of voting with absentee or mail-in ballots are ripe for fraud or illegitimate, echoing baseless claims from Dinesh D’Souza’s film 2,000 Mules.

But Judge Liburdi claimed that “there is no evidence that [Clean Elections USA or Ms Jennings] have publicly posted any voter’s names, home addresses, occupations, or other personal information.”

“Even if these statements are mere window dressing, a reasonable listener could not interpret Ms Jennings’ social media pronouncements that alleged ‘mules’ will ‘shrink back into the darkness’ following her drop box initiative as true threats,” according to the ruling.

He claimed that the ballot watchers’ behaviour “does not fall into any traditionally recognized category of voter intimidation,” though he ackowledged that the plaintiffs “and many voters are legitimately alarmed by the observers.”

But, “taken together, the Court cannot conclude that Defendants’ conduct constitutes a true threat,” he wrote.

Plaintiffs have already filed an appeal to the 9th US Circuit Court.

The ruling comes after arguments in the case included testimony from voters and members of the Arizona Alliance for Retired Americans, whose membership is mostly between the ages of 60 and 90 and rely on absentee ballots rather than standing in long lines to cast their votes.

Alliance president Saundra Cole testified that it is “intimidating” to have strangers “taking pictures of you, or your car or anything, and so seeing that on the media ... people are kind of stepping back and going, ‘Well, maybe it might not be safe for me to go out and vote.’”