When we last checked in on Arizona Democrats’ efforts to prevent people from monitoring activity around ballot drop boxes, things were looking rather dubious for the plaintiffs. Their arguments about potential “intimidation” were running up against First Amendment protections, not to mention the lunacy of the courts ordering certain groups of people from standing in the public square and observing or even filming the actions of other pedestrians. Now, as our colleagues at RedState reported last night, the courts have thrown cold water on these complaints.
U.S. District Court Judge Michael Liburdi ruled on Friday, refusing to grant the plaintiff’s request for an injunction to bar observers from watching the ballot boxes, citing constitutional violations. Liburdi held that the First Amendment rights of individuals to speak and gather do not extend to “true threats.” The judge said that no evidence was provided to prove that Melody Jennings, founder of Clean Elections USA, or its members had done anything to reach a level considered to be threatening, or otherwise illegal.
The case remains open, while one plaintiff group, Voto Latino, was removed. The remaining plaintiff, Arizona Alliance for Retired Americans could try again to make its argument for an injunction against the ballot box watchdogs. AARA said they would “seek immediate appellate review and emergency relief.”
Judge Michael Liburdi appeared to take pains to clarify the difference between routine public activity and “true threats” when discussing the limits of First Amendment freedoms. He noted that Clean Elections USA founder Melody Jennings had instructed her members to follow the law and not to engage with or even speak to people in the vicinity of the drop boxes.
Jennings’ social media posts about the drop box watchers were also highlighted in the ruling. Whether or not you believe that there are “ballot mules” out there stuffing drop boxes, a suggestion that being observed and recorded, potentially leading to public exposure, might make them think better of the plan could not be construed as a threat.
The Democratic groups fighting this battle also tried to make hay out of reports that some dropbox observers were seen openly (and legally) carrying firearms. But the mere presence of people legally utilizing their Second Amendment rights also fails to constitute a threat or offer a reason to impinge upon their First Amendment rights.
Unless and until someone can be shown to have been threatened, harassed, or intimidated while trying to legally drop off a ballot, this case doesn’t look like it will go anywhere. While I find the use of unsupervised ballot drop boxes to be problematic, the courts have disagreed thus far. But we are still left to wonder why certain groups would find it so disturbing to have their fellow citizens viewing them doing something that is ostensibly legal out in the public square. If you’re not doing anything wrong, why would you care if someone sees you doing it? I mean, these people are purportedly participating in the election and nobody observing them has any way of knowing who they are voting for unless they intentionally show up covered in campaign gear. Shouldn’t they all be proud to be seen taking part in the democratic process?