Earlier here at ELB, Rick H. linked to a federal district court’s ruling refusing to issue an injunction against groups for patrolling ballot drop box locations, balancing the risks of voter intimidation with First Amendment interests. That case then saw an emergency appeal to the Ninth Circuit.

That case, with lead plaintiff Arizona Alliance for Retired Americans and brought by lead attorneys from the Elias Law Group, sought the fairly broad remedy as follows, from the TRO: “The Court should therefore enter a temporary restraining order and preliminary injunction prohibiting Defendants from gathering within sight of drop boxes; from following, taking photos of, or otherwise recording voters or prospective voters, those assisting voters or prospective voters, or their vehicles at or around a drop box; and from training, organizing, or directing others to do those activities.” That broad relief is what the district court rejected and is now on appeal.

But that’s not the only voter intimidation case pending in Arizona, and there’s another that (in my judgment) is on a more sustainable foundation for success. That case, with lead plaintiff League of Women Voters of Arizona and attorneys at Protect Democracy, pointed out that the League was not seeking “a blanket injunction to halt anything that might loosely be labeled poll monitoring,” as the other case did, but “specific components of Defendants’ operation, which include time-tested and highly effective methods of voter intimidation,” including “spreading specific false information about voting and voters,” “threatening and harassing ‘monitoring’ of voter behavior,” and “false public accusations of voter fraud and disclosure of personal information (‘doxing’).” Specific instances are listed in supplemental brief in support of the TRO.

Relatedly, the United States Department of Justice has weighed in on the League of Women Voters case with a statement of interest brief (with Civil Rights Division AAG Kristen Clarke on the brief, among others).

There are challenging questions, to be sure, about how to even identify the parties responsible here (some loose organizations and individuals to appear to be leading the efforts), and the fine line between “free speech” and activities that rise to voter intimidation under federal law. (The United States brief helpfully explains what conduct, especially in prior precedent, falls on the intimidation side of the line.)

But the League of Women Voters case has already seen early promise of success, as the district court had a hearing today and has scheduled an evidentiary hearing for tomorrow (November 1) on these specific issues. While one case with an overbroad request for relief languishes in an emergency appeal, the other is fast tracked for an evidentiary hearing. We’ll see what happens as the case proceeds, but it’s worth emphasizing that the details of litigation matter, as is playing out in these two cases.