Right to Videorecord in Public Places Includes Right to Videorecord Voters at Dropboxes

Starting at Clean Elections USA: Arizona Alliance for Retired AmericansToday, Judge Michael T. Liburdi (D. Ariz.), ruled in favor of the petition.

The controversial events that occurred in the run-up to the 2020 Presidential Election sparked a lot of online speculation about the legitimacy and validity of this electoral process. After the publication of The, one such theory rose to prominence online. 2000 Mules film. Film based primarily on anonymous cell phone location data. The story tells of a dark network of “ballot mules”, who conspire to influence 2020 election results by collecting false absentee ballots, and strategically depositing them into early voting dropboxes in key electoral states. {In relation to this, Arizona law prohibits a person from collecting voted or unvoted early ballots from another person, with some exceptions. }

Inspired by the film, Ms. Jennings founded CEUSA and formulated a plan of action—#Dropboxinitiative2022—with the purpose of deterring so called “ballot mules” from using drop boxes. Social media was used by Ms. Jennings to encourage supporters and associates to meet near drop boxes as groups of “…”[n]These “mules” are being tracked and stopped by no less than eight people

Three separate Maricopa County residents filed complaints regarding voter intimidation in the vicinity of both early voter drop box locations. Each drop box is located in a parking lot and allows voters to drive up to their vehicle to place ballots. According to the first complaint, a group of people gathered at the Mesa, Arizona dropbox and took pictures of the voter. They then accused him and his wife of being mules. Further, the voter claims that several individuals followed him briefly out of his parking lot in order to take a photograph of his license plate.

A second complaint stated that people took photos of the voter’s vehicle and license plate as they were putting in mail-in ballots. A third complaint stated that a group comprising five to six men stood in the Mesa poll drop box parking lot and took photographs of the vehicle and plate of the voter. These formal complaints were not the only ones that the Maricopa County Sheriff’s Office received. They also sent a team to Mesa to examine armed, masked and wearing body armor. All the while, Ms. Jennings used her social media account to publicize the work of her volunteers and recruit others….

The Voting Rights Acts Section 11(b), states that “no person shall threaten or coerce or try to intimidate any person to vote or to attempt to vote.” Section 11(b), as its title suggests, is broad. It is well established that this provision applies to private conduct and can be enforced through private litigation…. [T]Section 11(b) requires that the “or other” language be used in the statute to indicate Congress’ intent to regulate public and private conduct.

The Plaintiffs claim that the Defendants violated Section 11 (b) by inciting or trying to intimidate. Determining what constitutes intimidation is left to the courts, as that term is not defined in the statute…. [T]The dictionary definitions for “intimidate” (and “threaten”) are very instructive. “Intimidate” is to make someone fearful or timid, or inspire or cause fear. It also means “to force action (as with threats). Threaten is to make threats or promise punishment, reprisal or any other form of distress.

It is important to note that any definition of intimidation should take into account rights set forth in the Constitution. You can also read the Constitution. Wohl, the court balanced these interests and held that “intimidation includes messages that a reasonable recipient, familiar with the context of the message, would interpret as a threat of injury—whether physical or nonviolent—intended to deter individuals from exercising their voting rights.” “[A]Section 11(b) can be violated by communications or ctions that incite fear of financial harm, legal consequences, privacy violations and even surveillance. The conduct that allegedly threatens or intimidates individuals is enough to justify a Section11(b) claim. This level of conduct is prohibited regardless of whether the defendants intended to intimidate or threaten voters.

Plaintiffs’ primary aim, as the Court finds it, is to put an end to Defendants’ drop-box surveillance activities…. [T]First Amendment protections do not stop at spoken and written words. Constitutional protection extends to expression, rather than just the spoken or written word. Conduct must be intrinsically expressive to qualify for First Amendment protection. However, expressive behavior does not necessarily convey a particular message. What message would a rational observer interpret as the expression? Some Type of message

The record clearly shows the defendants are trying to prevent illegal voting or illegal ballot harvesting. Social media posts by Ms. Jennings show that she thinks the mere presence of her volunteers would send messages to these “ballot mules.” The message here is that those who try to breach Arizona’s antiballot-harvesting law will be exposed. The Court concludes that the behavior could be interpreted by a reasonable observer as sending a message regardless of its objective merit.

Furthermore, the “First Amendment” right applies to films that are of public importance. Fordyce v. City of Seattle (9th Cir. 1995). A right to receive news has been recognized by the Supreme Court. Branzburg v. Hayes (1972). The public is entitled to information and ideas under the First Amendment. Richmond Newspapers, v. Virginia (1980) (citation omitted); See also First Nat’l Bank of Boston, v. Bellotti (1978) (“[T]The First Amendment extends beyond the protection of press freedom and self-expression to prevent government from restricting the information available to members of the general public . The right to information is available regardless of its social value. Stanley v. Georgia (1969).

The Court will now examine whether there is any exception to this rule after it has been established that the conduct in question here falls within the First Amendment’s protections. Plaintiffs maintained that First Amendment protection is not possible because the true threats doctrine was used. They are right. False threats do not fall under the First Amendment. True threats “statements that the speaker is expressing a grave intention to commit an action of violence” are true threats. Unlawful Violence to an individual or group of people,” but the speaker does not have to intend to do so. The Court will consider the context and reactions of listeners when determining whether speech constitutes a threat. If the context suggests that the speaker is only speaking out against political or emotional issues, a threat that threatens violence might not actually be real. A statement which does not specifically threaten violence could be considered a threat if it is made against the backdrop of targeted violence.

Plaintiffs did not provide any evidence to the Court that defendants’ behavior constitutes a threat. This record shows that Defendants never made threats to act on a specific individual or group of people. No evidence has been presented to show that the Defendants posted voter information, such as names and occupations of voters, their home addresses or professions. Jennings consistently states that her volunteers must “follow laws” as she insists that they are required to do so.[t]Anyone who breaks the law is considered an infiltrator intent to cause trouble [CEUSA] harm.” Jennings also posted on social media warning volunteers not to go beyond the seventy-five foot radius of the legally required voting area. {Arizona law provides that “a person shall not be allowed to remain inside the seventy-five foot limit while the polls are open, except for the purpose of voting … and no electioneering may occur within the seventy-five foot limit.”} The record also contains evidence that Jennings instructed her associates to not engage or speak to drop box users. These statements may be superficial, but a rational listener would not understand Ms. Jennings social media threats that “mules will shrink back into darkness” after her dropbox initiative.

Furthermore, the conduct of the defendants is not considered voter intimidation. Cf. U.S. v. Tan Duc Nguyen (9th Cir. (2012) (concluding the large distribution of a warning letter to Latino immigrants “that if [they] vote in the forthcoming election, their personal data would be collected and could be given to anti-immigration groups” is sufficient evidence for determining unlawful intimidation under California law). U.S. v. McLeod (5th Cir. 1967). U.S. v. Bruce (5th Cir. 1965). (holding that an owner’s refusal to allow an insurance collector to access the property of the landowner due to the collector’s attempts to register voters as unlawful intimidation). U.S. against Beaty (6th Cir. 1961) (holding the evictions of sharecroppers in punishment for voting registration is illegal intimidation). In Daschle v. Thune (D.S.D. 2004) For instance, the court ordered defendants to refrain from following Native Americans from their polling stations or copying Native Americans license plate information. In Thune justified its injunction because there was intimidation particularly targeted at Native Americans—reasoning that the public interest is served by having no minority denied an opportunity to vote. The Court does not have evidence that these outdoor drop boxes were used primarily by minorities, or that they are victims of violence. All of this together means that the Court is unable to conclude that the conduct by Defendants poses a threat.

It has been difficult for the Court to create a form of effective injunctive relief which does not violate the First Amendment rights of Defendants and drop-box observers. Although the Court recognizes the legitimate concern of Plaintiffs, and other voters about the filming by observers at County’s early vote drop boxes, it does not deny that the cameras were being used for their own purposes. However, the Court does not believe that Defendants’ actions are sufficient to justify preliminary injunctive relief. Or, alternatively, even though this case raises serious issues, the Court cannot issue an injunction that violates the First Amendment.

Also, the court rejected an appeal under Ku Klux Klan Act. It makes it a crime for “conspire”.[] to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a member of Congress ….” Although the Act required that “Defendants prove that their conspiracy was intended to intimidate and threaten voters in order to vote in federal elections,” the court found that there is no evidence to support the claim that defendants intend to stop lawful voting.

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Here are two thoughts:

[1.]Surprisingly, the court has not spoken more about watchers being armed. Although it raises Second Amendment concerns, I think that the court did not discuss this specific aspect.

[2]This case, as regards the monitoring of such things reminds me of the inquiry that was raised in NAACP v. Claiborne Hardware (1982). (1982). Charles Evers was an NAACP official who also made threats to “social isolation” of black residents. He also mentioned the possibility of breaking necks and that the Sheriff would not be able to sleep with those violating the boycott.

The Court ruled that (1) social ostracism threats are constitutionally protected even though they “may embarrass other people or coerce them to act” and (2) Evers statements were not sufficiently violent-threatening to be constitutionally ineligible. Although I do find the monitoring of poll boxes and stores potentially extremely alarming, it is not clear if such measures are protected by law.

For the tip, Prof. Rick Hasen from Election Law Blog thanks.