Arizona U.S. District Court Judge Michael Liburdi rejected an attempt by progressive groups to stop voters in Arizona concerned about ballot harvesting from observing ballot drop boxes. He said in his opinion on Friday that there was no evidence provided which showed “that Defendants’ conduct constitutes a true threat.”
Liburdi stated in his opinion, “On this record, Defendants have not made any statements 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 added that the plaintiffs had “not provided the Court with evidence that Defendants intend to prevent lawful voting.”
Luke Cilano, a board member for the Lions of Liberty and one of the named defendants, told The Arizona Sun Times, “We are 100 percent people who follow the rule of law. If there is a question about that, we want to separate ourselves from vigilante groups, since we’re not that. At the end of the day, our organization is God centered and Christ centered. This is not as much a win about the constitution but glory to God and what’s he’s given this country.”
Cilano said Lions of Liberty, which organized watch efforts in Yavapai County, provided strict instructions to its volunteers in advance stating that they must remain in their vehicles while observing and cannot venture within 75 feet of a ballot drop box. “Most of the time we’ve parked over 100 yards away and no one knew we were even there,” he said. “Last Sunday, a Japanese film crew circled our car, and even then only one woman finally noticed us, she started taking photos of us. We smiled and waved, did not use cameras.”
Alex Kolodin, an election law attorney who represented the defendants, told The Sun Times, “Davillier Law Group was honored to be able to vindicate the First Amendment right of peaceful assembly in this matter. Hats off to my colleague Veronica Lucero for her masterful performance at oral arguments on the Democrats’ Motion for a Temporary Restraining Order on less than a day’s notice.”
An organization called Protecting Democracy Project filed the lawsuit this week against the organizers as well as against some of the volunteer observers on behalf of the League of Women Voters (LWV). The Arizona Alliance for Retired Americans (AARA) and Voto Latino (VL) filed a similar lawsuit.
The LWV lawsuit named Lions of Liberty, its affiliate Yavapai Preparedness Team, Clean Elections USA, which is organizing nationwide efforts, and several individuals and John Does. The AARA and VL lawsuit named similar defendants. The latter lawsuit included a photo of some “Doe Defendants,” revealing three people dressed in normal clothing sitting on lawn chairs.
The complaints are very similar. The LWV complaint accused the defendants of “intimidating voters by collecting their personal information and surveilling them while carrying firearms and wearing military tactical gear.” It said they were “fixated on a thoroughly debunked conspiracy theory” from the “2022 disinformation film, 2000 Mules.”
Arizona has some of the most Second Amendment friendly gun laws in the country, with constitutional carry laws that allow gun owners to carry firearms concealed or openly carried without a permit.
Theresa Lee, the litigation director and clinical instructor at Harvard Law School, told Newsweek that gun owners are not allowed by law to carry guns and observe ballot drop boxes. She described their actions as “guarding” ballot drop boxes.
However, Alan Korwin, a nationally recognized expert on gun laws, who has written numerous books explaining state and federal gun laws, told The Sun Times this is inaccurate, and disputed her characterization of ‘guarding.’
“The volunteers are observing, not guarding,” he said. “Guarding implies there will be some kind of action taken beyond merely taking photos.” However, he stressed that carrying firearms should be done appropriately. “Unholstering a firearm if it is not immediately needed can lead to charges,” Korwin said. “Brandishing, mentioned in some reports, is hyperbole, specific activity that has not been reported.”
He went on, “Legacy media, conveying stories from left-leaning groups like The League of Women Voters and others, is treating normal legal activity as criminal acts, unless people have advance ‘permission’ from authorities,” he said. “In dictatorships like the communist countries, that’s how it works — people must get permission before they can act. In a free nation like America, people have the liberty to do as they please, as long as actions haven’t been banned. Watching ballot boxes is perfectly OK. Suggesting it is not is the real problem — coming almost exclusively from the left, already under suspicion of tampering with ballots.”
Democratic Maricopa County Sheriff Paul Penzone acknowledged that having a gun in a public space near a ballot box doesn’t meet the threshold of a criminal penalty. He said last week that none of the 14 election-related complaints his office has received rose to the level of a crime.
Arizona law prohibits firearms or observers from within 75 feet of a polling location, but has no similar law regarding ballot drop boxes.
State Sen. Kelly Townsend (R-Apache Junction), who encouraged volunteers to monitor the drop boxes, urged them not to wear tactical clothing since “it could be considered voter intimidation.”
The LWV complaint accused the Yavapai defendants of being “an offshoot of the Oathkeepers, a group publicly perceived as an extremist, militia group.” Clean Elections USA and its founder, Melody Jennings, are accused of “scheming to baselessly accuse voters of being ‘mules’ and to ‘dox’ them.”
Jennings has stated that observers need to keep their distance from drop boxes and abide by local laws. She posted on social media that anyone who does not follow the law is “instantly disassociated with Clean Elections USA.”
Arizona passed a law criminalizing doxing in 2021, A.R.S. 13-2916, but it requires that the doxing “does in fact incite or produce that unwanted physical contact, injury or harassment.” The law also states that it does not apply to “Constitutionally protected speech or activity or to any other activity authorized by law.” Snell & Wilmer, a large law firm in Phoenix, stated that “The requirement that harassing behavior ‘in fact’ occurs seems to be a significant bar to prosecuting doxing events.”
Citing the Ku Klux Klan Act of 1871, the LWV complaint accused the groups of those “very kinds of vigilante-led voter intimidation.” It also claimed that watching the ballot drop boxes violates §11(b) of the Voting Rights Act of 1965 by suppressing voters through “force, intimidation or threat.” Both of the lawsuits have significant references to 2,000 Mules and the Oathkeepers throughout.
Bob Brickman, an election attorney in Phoenix, told The Sun Times that the Maricopa County Elections Guide, which is distributed to every poll worker in the county, allows registered voters in the county to challenge election discrepancies. “The rights of ordinary registered voters to challenge suspicious voting acts of others is part of Arizona election history,” he told The Sun Times. “In Maricopa County, that right has been enshrined in Maricopa County Elections Department Rules and Procedures. The current Maricopa County Elections Department 2022 Training Manual for Poll Workers August Primary & November General Election, on page 93, sets forth five circumstances for challenging a person attempting to vote.”
The guide states, “Any registered voter in Maricopa County may verbally challenge a voter under the following circumstances,” and lists several reasons, including having already voted in the election, not being listed as a registered voter, a felon, or not a “qualified elector.” Brickman said qualified electors do not include people who are turning in ballots that they are not allowed to by Arizona’s ballot harvesting statute.
Brickman concluded, “Just because suspected ballot harvesting occurs outside a staffed voting location, a qualified voter observing the challenged activity should not lose the right to voice a challenge, record the activity, call the police, and call any Republican Party voting complaint phone number.”
The lawsuits appear to be part of a pattern by Democrats to crack down on Arizonans observing the ballot drop boxes. Earlier this month, a voter told the Arizona Secretary of State’s Office that they were approached and followed by some observers at a drop box in Mesa, prompting the office, which is run by gubernatorial candidate Democratic Katie Hobbs, to refer the complaint to the Arizona Attorney General’s Office and the FBI for investigation. This past week, Penzone increased the security presence around ballot drop boxes, citing complaints.
People dropping off ballots are turning around and taking photos of the observers and reporting them to the FBI, CBS reported.
The Protect Democracy Project files lawsuits against “election disinformation,” and is significantly involved opposing former President Donald Trump in litigation. The group represented Capitol Police officers suing him over the Jan. 6, 2021 demonstration at the U.S. Capitol, and challenged Trump’s efforts to block the January 6th Select Committee from accessing his presidential records.
Arizona passed a law restricting ballot harvesting in 2016, A.R.S. 16-1005, which only allows family members, household members or caregivers to return ballots for voters. Many of the ballot drop box observers merely use the VotifyNow app to report suspicious incidents, not engaging with the voters. The app also includes a section for reporting voter suppression encounters.
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Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on Twitter. Email tips to [email protected].
Photo “Ballot Drop Box” by OSCE Parliamentary Assembly. CC BY-SA 2.0.
