Drop-Box Monitoring: Voter Intimidation, or Free Speech?

Steven D. Schwinn, University of Illinois Chicago School of Law

A federal district court declined to stop an organization from "monitoring" and photographing voters at Arizona voting drop-box locations, in part because the court said that the organization's activities are protected under the First Amendment. The ruling means that Clean Elections USA and its "monitors" can continue watch voters at the drop-boxes and photograph voters.

The case, Arizona Alliance for Retired Americans v. Clean Elections USA, tests Clean Elections' practice of posting volunteers at voting drop-box locations to monitor voters and take pictures of them and their license plates. According to the court, "[m]any voters have filed official complaints . . . and have even sought out law enforcement assistance." Plaintiffs sued, arguing that the practice violated the Voting Rights Act and the Ku Klux Klan Act. They sought a temporary restraining order to stop the practice.

The court declined. The court held that Clean Elections' practices were not sufficiently intimidating to violate the VRA, despite the fact "that Plaintiffs and many voters are legitimately alarmed by the observers filming at the . . . early voting drop boxes." Alternatively, the court held that it couldn't stop Clean Elections "without violating the First Amendment." (How? Several ways, according to the court. For one, "the Court finds that a reasonable observer could interpret the conduct as conveying some sort of message, regardless of whether the message has any objective merit." For another, there's a "First Amendment right to film matters of public interest." For a third, there's "a right to gather news." And for a fourth, there's a "right to receive information.")

As to the Ku Klux Klan Act, the court held that the plaintiffs failed to show that Clean Elections intended to intimidate or threaten voters (intent being a requirement under the Act).