DOJ says ballot box tracking in Arizona likely illegal

DOJ says ballot box tracking in Arizona likely illegal


The Department of Justice has jumped into the running Arizona elections lawsuit Monday, supporting the Arizona League of Women Voters’ claim to oversee ballot boxes may constitute illegal voter intimidation.

The department said such “ballot precautions,” including taping voters in the boxes, likely violate the federal Voting Rights Act.

“When private citizens form ‘voter security forces’ and attempt to take over the state’s legitimate role in overseeing and monitoring elections, the risk of voter intimidation — and violation of federal law — is significant,” the department said in a “statement of interest” filed in the case.

The League of Women Voters alleged that several organizations planned “widespread campaigns to track and intimidate Arizona voters at the ballot box and falsely accuse them” of voter fraud.

Drop boxes, which are meant to provide a safe and convenient place to drop off ballots, have become a symbol of mistrust in elections among many supporters of former President Donald Trump.

Trump and his allies nationally and in Arizona urged supporters to monitor the outside boxes, an offshoot of the discredited movie “2000 Mules” which claims that the drop boxes were full of fake ballots during the 2020 election.

Voting rights advocates and Arizona officials increasingly alarmed by outside groups rallying around drop-off boxes greeted news of the Justice Department’s filing with strong language about voter intimidation and video recording of voters and their vehicles.

“To have people standing in front of a casket, armed with tactical gear, with body armor, it’s unprecedented,” said Bill Gates, chairman of the Republican-led Maricopa County Board of Supervisors. The motion, Gates said, showed “that there’s a line — there’s a balance between the First Amendment rights that people have and the rights that people have not to feel intimidated when they vote. That point is made very strongly.”

The Arizona lawsuit is one of many claims from battleground states that voters are intimidated when they put ballots in the boxes. On Oct. 20, Arizona Secretary of State Katie Hobbs (D) sent a report to the Department of Justice about the harassment of box voters. Attorney General Merrick Garland said last week that the department “will not allow voter intimidation” during medium term elections.

But Monday’s filing marks the first time this election cycle that the department has waded into an ongoing case involving drop boxes in this way. The department specifically addressed the photographing of voters at drop-off points, sometimes by armed vigilantes.

“The recording or photographing of voters during the voting process has long been known to raise particularly acute concerns,” the department’s filing on Monday said.

The request comes after a federal district court judge in Arizona, Michael Liburdi, on Friday refused in a related case to block groups from the tracking box. He said in a case brought by the Arizona Alliance for Retired Americans that there was not enough evidence to justify judicial intervention in an activity protected by the First Amendment.

In its filing, the department did not offer a specific prescription in the case, but argued that it is possible to craft an injunction to block threatening activity consistent with the First Amendment’s protections of free speech and assembly.

“While the First Amendment protects expressive conduct and peaceful assembly generally, it provides no protection for threats of injury directed at voters,” the department’s lawyers wrote.

Voting rights advocates applauded the department’s action.

“The filing confirms the serious threat that voter intimidation like we’re seeing in Arizona poses to our democracy,” said Jessica Marsden, counsel for Protect Democracy, which filed the lawsuit on behalf of the League of Women Voters.

Danielle Lang, senior director of voting rights at the Campaign Legal Center, said the statement of interest is strongly worded, a significant addition to the case.

“It’s remarkable that this persuasive brief was filed in such short time,” after Liburdi’s decision not to intervene, Lang said.

The League of Women Voters is seeking a court order to prohibit armed vigilantes from gathering near drop boxes, and a hearing on that request is scheduled for Tuesday.

The hearing was held after one of the defendants in the league’s lawsuit, the Lions of Liberty, was dropped from the case after agreeing to halt its drop box tracking program. Luke Cilano, a Lions of Liberty board member in Yavapai County, questioned the department’s decision to get involved.

“Why would they make statements about anything that’s a state’s rights issue, unless they’re trying to undermine a state’s right?” he said Monday.

Officials in Maricopa County, home to metro Phoenix and the state’s largest voting population, urged voters to contact police or the secretary of state’s office if they feel uncomfortable pulling up to drop-off boxes.

The Office of the Secretary of State reviews appeals and decides whether they should be referred to the Ministry of Justice and the State Attorney’s Office.

State election officials say they are have received more than a dozen complaints of intimidation at the box office since early voting began on October 12. Through an open records request, The Washington Post has received copies of the complaints addressed to the law enforcement authorities.

“I left my ballot at the Maricopa County Recorders office and there were two men recording the entire drive,” one voter wrote in a filing about his experience while voting in downtown Phoenix on Wednesday afternoon. “While this may not be illegal, it is very annoying and scary.”

Wingett Sanchez reported from Phoenix.

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