The Department of Justice has chimed in on a recent ruling on a motion filed against a right-wing group that determined a group of individuals guarding ballot boxes wearing tactical gear and bearing arms was not a form of voter intimidation and were within their constitutional rights. 

The ruling came on Friday, Oct. 28, in which a Trump-appointed Arizona Federal Judge Michael T. Liburdi sided with Clean Elections USA and its founder Melody Jennings, in a motion filed against them by Voto Latino and the Arizona Alliance for Retired Americans (AARA).

On Monday, Oct. 31, Assistant Attorney General for Civil Rights Kristen Clarke, came out against the ruling in a brief filed in the U.S. District Court in Phoenix. 

“The First Amendment does not protect individuals’ right to assemble to engage in voter intimidation or coercion,” Clarke wrote. “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.” 

They alleged voter intimidation on five different occasions over the course of a week near drop box locations in Maricopa County. Judge Liburdi ruled that the activist group was not a “true threat” and did not show tactics of intimidation and added that their right to assemble in public spaces is constitutionally protected. 

The plaintiffs also alleged intentions of those guarding the ballot boxes was to try and dissuade individuals from voting by way of harassment and threats of violence. The two groups were seeking a restraining order as the group of people surrounding the boxes were also allegedly taking photos and recording videos of voters, prospective voters, and people assisting them.

The Ninth Circuit Court of Appeals is currently weighing the decision to file an emergency appeal or not to Liburdi’s ruling filed from AARA and Voto Latino. On Saturday, Oct. 29, a lawyer for Clean Elections USA said the group was looking to file a hurried response later on Monday.

“Much like a citizen’s refusal to pay taxes does not become protected speech because she is attempting to express disapproval of the IRS, photographing a voter’s license plate does not become protected speech whenever the photographer seeks to express disapproval of drop-box voting,” the DOJ wrote. 

The allegations “raise serious concerns of voter intimidation,” Clarke wrote, and added that “vigilante ballot security efforts” and “private campaigns to video record voters” likely violate the federal Voting Rights Act. 

“Citizen-led election monitoring activities are more likely to put voters in reasonable fear of harassment, intimidation, coercion, or interference with their voting rights,” the DOJ added.

Clarke’s filing was made as a part of a parallel case in which the League of Women Voters of Arizona brought last week against two groups also accused of voter intimidation and monitoring of drop boxes, the Lions of Liberty and Clean Elections USA, the latter being the group in the Voto Latino and AARA case. 

On Friday, the plaintiff asked the court for an injunction that is still currently pending against those groups to stop their intimidation tactics and from further engaging in such activities Election Day nears on Nov. 8, and as early voting across the country is well underway. 

The DOJ’s brief attacks a number of points made by the judge including the idea that taking photos of voters for instance is in the same vein as using your phone to film police officers. It also raises comparisons to past events of alleged attempts to intimidate voters. One of them is from 2004, in which operatives in South Dakota followed Native American voters and recorded their license plate numbers, but a federal judge issued an injunction in that particular case. 

In the League of Women Voters’ case, on Oct. 31, Judge Liburdi dismissed the Lions of Liberty and their parent organization, the Yavapai County Preparedness Team, from the initial suit after organization leaders pledged in court not to further engage in any more monitoring activities.