Emergency Motion for Injunction Pending Appeal Filed in 9th Circuit in Arizona Drop Box Voter Intimidation Case

You can find the motion here:

For the past two weeks, Defendants have incited and engaged in a campaign of voter intimidation at ballot drop boxes in Arizona, with the express purpose of keeping people from using them to return their ballots. The result has been at least seven voter intimidation complaints filed with Arizona’s Secretary of State and multiple reports by voters describing armed individuals, sometimes masked and in tactical gear, surveilling drop boxes in the dark of night. State officials have sought help from federal law enforcement, ER097, 135, described Defendants’ intimidation teams as “vigilantes,” ER094, and expressed “deep[] concern[] about the safety of individuals who are exercising their constitutional right to vote and who are lawfully taking their early ballots to a drop box,” id….

When voting began in Arizona about two weeks ago, Jennings urged individuals to start monitoring certain drop boxes. ER086, 090. Jennings provided a roadmap of how to organize in large groups with the intent of having the best “deterrent” effect, ER084 (“No less than 8 people”), ER085 (“10 people in groups around every drop box! Not 2 people. That’s not a deterrent”), and proposed mechanisms to be used to scare voters away from using the drop boxes.

She encouraged drop box watchers to collect and send photos back to CEUSA so the information could be passed along to third parties, ER092, and voters could be “geotrack[ed].” ER089 (00:40-1:40). Jennings urged her followers to participate in voter intimidation at specific times and places. ER086, 092-93. Groups monitoring drop boxes, some armed and many openly affiliated with CEUSA, then stationed themselves at Maricopa County’s only outdoor drop box locations and began filming voters they suspected of being “ballot mules.” ER115-116, 120. And Defendants also began publicly exposing the personal information of voters using drop boxes. ER121, 101 (43:25-45:02). On October 21, Jennings bragged in an interview that a voter “was upset his picture went out there.” ER101 (42:25-44:02). On October 22, Jennings posted photos of an elderly voter including a close-up of their license plate. ER121.

The effect of Defendants’ actions was immediate: Across a one-week period, more than half a dozen voters submitted reports to the Secretary of State describing their fears of intimidation due to the presence and conduct of drop box watchers in Maricopa County. ER135, 162. One voter felt intimidated when a group of individuals near a ballot drop box filmed and photographed the voter, took photographs of the voter’s license plates, and followed the voter into the parking lot while continuing to film, accusing the voter of being a mule. ER098. Other voters, who identified themselves as elderly, also reported being intimidated by individuals who were filming and taking photos of cars and license plates. ER111. This conduct quickly drew concern and condemnation from state and local election officials. ER094, 135. Voters across Arizona are now broadly fearful because of Defendants’ conduct. As a voter testified at the hearing, she considered the threats by Defendants when selecting where to drop off her ballot, and became very concerned when she saw someone who appeared to be filming her from a car parked near a drop box, afraid her images would be used to identify and harm her. As Plaintiffs repeatedly testified, these incidents are new, and have directly coincided with Jennings’ mobilization campaign.

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“It’s 2024. Trump Backers Won’t Certify the Election. What Next, Legally?”

NYT:

It’s a nightmare scenario for American democracy: The officials incharge of certifying an election refuse to do so, setting off a blizzard of litigation and possibly a constitutional crisis.

And there are worrying signs that the fears of independent scholars, Democrats and a few anti-Trump Republicans could become a reality. We could soon be in legal terra incognita, they said — like the days when medieval cartographers would write “Here Be Dragons” along the unexplored edges of world maps.

“It would be completely unprecedented,” said Nathaniel Persily, an elections expert at Stanford University. “I hate to be apocalyptic,” he added, but the United States could be headed for the kind of electoral chaos that “our system is incapable of handling.”

In Arizona, Kari Lake, a charismatic former television anchor, and Mark Finchem, a state lawmaker, have a very good chance of becoming governor and secretary of state. Both are ardent supporters of Donald Trump and his false claims that the 2020 election was stolen….

In neighboring Nevada, another G.O.P.-controlled county’s plan to count ballots by hand is on hold after the State Supreme Court ruled the process illegal. The Republican secretary of state, Barbara Cegavske, then ordered the hand-counting process to “cease immediately.” Her possible successor, the Trump-backed Jim Marchant, might have acted differently.

One of the Arizona secretary of state’s chief tasks is assembling the elections procedures manual that, once approved by the governor and the attorney general, is distributed to county and local officials. Brnovich refused to accept the 2021 manual proposed by Hobbs, so the state has been using the 2019 edition.

The manual is limited to the confines of Arizona election law. But Finchem could tinker with the rules regarding the approval of voter registration, or ballot drop boxes, in ways that subtly favor Republicans, said Jim Barton, an election lawyer in Arizona. He could also adjust the certification procedure for presidential elections.

“You can imagine a lot of mischief with all the nitty-gritty stuff that nobody pays attention to,” said Richard Hasen, an elections expert at the University of California, Los Angeles.

Looming over all this is a Supreme Court case on elections that is heading to oral arguments this fall.

The justices are expected to rule on a previously obscure legal theory called the independent state legislature doctrine. Conservatives argue that the Constitution granted state legislatures, rather than secretaries of state or courts, the full authority to determine how federal elections are carried out; liberals and many legal scholars say that’s nonsense.

If the court adopts the most aggressive version of the legal theory, Persily noted, it could raise questions about the constitutionality of the Electoral Count Act, adding a new wrinkle of uncertainty.

“My hair is on fire” to an even greater degree than it was in 2020, said Hasen, who published a prescient book that year called “Election Meltdown.”

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Federal Court Refuses to Block Ballot Drop Box Monitoring Activities That Plaintiffs Allege Has Been Intimidating Voters Citing First Amendment, But Invites Voters to Come Back with Evidence of Threats and Intimidation Should They Materialize

The order is here.

I understand the difficulty of balancing the First Amendment interests here, but I think the judge did not put enough weight into how these acts of monitoring people while being armed and mask is a deterrent to voting via a drop box.

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