A brief filed in U.S. District Court in Phoenix says, “the First Amendment does not protect individuals’ right to assemble to engage in voter intimidation or coercion.”
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By Ken Bensinger
- Oct. 31, 2022Updated 9:43 p.m. ET
The Justice Department has weighed in on the debate over election activists who have been stationing themselves — at times with guns — near ballot boxes in Arizona, saying that their activity may not be constitutionally protected if it has the potential to intimidate voters.
“The First Amendment does not protect individuals’ right to assemble to engage in voter intimidation or coercion,” Kristen Clarke, the assistant attorney general for civil rights, wrote in a brief filed on Monday in U.S. District Court in Phoenix. “Nor does it transform an unlawful activity for one individual — voter intimidation — into a permissible activity simply because multiple individuals have assembled to engage in it.”
The filing was made in a case that the League of Women Voters of Arizona brought last week against two groups that have been organizing ballot box monitoring, the Lions of Liberty and Clean Elections USA, as well as some of their principals. On Friday, the plaintiff asked the court for an injunction against those groups to stop the activity. That petition is still pending.
The judge overseeing the case, Michael T. Liburdi, on Friday refused to issue an injunction in a parallel lawsuit against Clean Elections USA, claiming that the Constitution protected the activities of citizens who wish to gather near ballot boxes.
The Justice Department’s intervention represents a rebuke to that ruling by Judge Liburdi, a longtime member of the Federalist Society who was appointed in 2019 by President Donald J. Trump.
The Justice Department’s brief addresses numerous points made by the judge, including the idea that taking pictures of voters and their car license plates is equivalent to filming police officers in the line of duty. The brief also draws comparisons to numerous past instances of apparent attempts to intimidate or deter voters. In one example from 2004, involving operatives in South Dakota who followed Native American voters and recorded their license plate numbers, a federal judge issued an injunction.
The Ninth Circuit Court of Appeals is weighing an emergency appeal to Judge Liburdi’s ruling filed by the plaintiffs in that case, the Arizona Alliance for Retired Americans and Voto Latino, on Saturday; a lawyer for Clean Elections USA said the group was rushing to file a response later on Monday.
And in a hearing on Monday on the League of Women Voters’ case, Judge Liburdi dismissed the Lions of Liberty and its parent organization, the Yavapai County Preparedness Team, from the suit after its leaders pledged in court not to engage in any more election monitoring activities. “We are standing down,” a board member, Jim Arroyo, told the judge. An evidentiary hearing on the injunction petition is scheduled for midday on Tuesday.
The founder of Clean Elections USA, Melody Jennings, has not appeared in court. In a Saturday appearance on “War Room,” a podcast hosted by the former Trump adviser Stephen K. Bannon, she said that her group was changing its name to the Drop Box Initiative in Arizona, but would retain the Clean Elections USA moniker in the rest of the country.
“We are going to rebrand a little bit,” Ms. Jennings said, adding that while she was still looking for volunteers in most places, “I don’t need any more people in Arizona, honestly.”
In a second “War Room” interview, on Monday, she asked listeners to consider donating money to True the Vote, a right-wing group focused on voter fraud, to support her legal defense.
Source: nytimes.com