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Federal judge rejects bid to shut down Clean Elections USA ballot watchers in Arizona

Observers have been accused of intimidation and harassment. Ruling says 1st Amendment protects ballot watchers organized by Clean Elections USA.

PHOENIX — Correction: An earlier version of this story incorrectly reported that "AARP" is a plaintiff. The plaintiff is the Arizona Alliance for Retired Americans.

A federal judge in Phoenix on Friday refused to shut down a group of organized ballot watchers who have been accused of intimidation and harassment at drop boxes for early votes.

Federal Judge Michael Liburdi, an appointee of President Donald Trump and a former legal counsel to Gov. Doug Ducey, said the U.S. Constitution's 1st Amendment protects the ballot watchers.

"Plaintiffs have not provided the Court with any evidence that Defendants’ conduct constitutes a true threat... Also, Defendants’ conduct does not fall into any traditionally recognized category of voter intimidation," Liburdi wrote in his 14-page decision.

"While there are serious questions implicated, the Court cannot provide preliminary injunctive relief without infringing core constitutional rights."

Liburdi rejected the plaintiffs' bid for a temporary restraining order against Clean Elections USA, but he has allowed the plaintiffs to file more evidence in support of their argument. 

Shortly after Liburdi's ruling, the plaintiffs, the Arizona Alliance for Retired Americans and Voto Latino, filed an appeal with the Ninth Circuit Court of Appeals in San Francisco.

The drop boxes have been available to voters at two locations in the Phoenix area for 16 days and will remain in place for 11 more days, until Nov. 8. 

The AARA/Voto Latino lawsuit is one of two similar suits filed this week against Clean Elections USA. 

Both suits contend the defendants are violating the Ku Klux Klan Act of 1871 and the Voting Rights Act of 1965, laws enacted during Reconstruction and the Civil Rights era to prevent voter intimidation.  

The second lawsuit, brought by the League of Women Voters of Arizona, includes evidence from voters who say they were intimidated by the presence of ballot watchers. The plaintiffs have asked Liburdi to take up that lawsuit as well.

Since the start of early voting  Oct. 12, Secretary of State Katie Hobbs has referred 10 reports of alleged voter intimidation, all in Maricopa County, to the U.S. Department of Justice and the Arizona Attorney General's Office.

Two men who brandished weapons near a ballot drop box in Mesa face possible criminal charges, pending a review by the Maricopa County Attorney's Office. 

Clean Elections USA was founded by QAnon-linked Melody Jennings, who is named as a defendant  in both lawsuits.

Jennings' organization has recruited many of the ballot watchers, Trump supporters united by the belief that ballot "mules" are dropping off illegal ballots at the boxes. 

After the ruling was handed down Friday, Jennings posted on her TruthSocial account:

"The constitution won today. This battle is not over, but today was a step for freedom and for your 1st amendment rights being preserved. 

"The request for a restraining order against myself and those involved in Clean Elections USA was denied. 

"If you so choose to vote at a drop box, box watchers may be at the boxes where you go. Wave and thank them for protecting your freedom."

The Arizona Alliance for Retired Americans issued this statement:

“Today’s decision is truly disappointing for our members and all older Arizonans. We continue to believe that Clean Elections USA’s intimidation and harassment is unlawful. The Arizona Alliance intends to seek immediate appellate review and emergency relief.

“American citizens should be able to cast a ballot without fear of personal injury or other harm to their safety and security.

“That said, the right to vote is precious and the stakes are especially high in this election. We urge all older Arizonans not to be deterred and return their ballots before the deadline, or vote in person on Election Day.”

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