Arizona Court: Armed Poll Watchers are Engaged in Free Speech, Not Voter IntimidationRoundup
tags: Arizona, voting rights, voter intimidation
Richard L. Hasen is professor at UCLA School of Law, where he directs its Safeguarding Democracy Project. He is an NBC News/MSNBC election law analyst.
Editor's Note: A subsequent decision by a different court has contradicted this one, and bars armed observers from coming within 70 feet of a ballot drop box.
The First Amendment’s free speech clause grants a lot of protection for false and odious speech. It also protects freedom of association. So if a group of people want to get together to protest the results of the 2020 election and falsely claim that Donald J. Trump won that election over Joe Biden, that is their right. Depending on the state, they may even have the right to do so openly carrying firearms. What they don’t have the right to do is to interfere with others’ constitutionally protected voting rights, such as by standing around ballot drop boxes in military gear with weapons intimidating voters against casting their ballots.
Yet, citing the First Amendment, a federal judge in Arizona last week refused to grant a preliminary injunction that would have stopped the groups of people carrying out these menacing activities in Maricopa and Yavapai counties as voters participate in the midterm election. The Ninth Circuit court of appeals is currently considering an emergency request for an order to overturn that decision and put the injunction in place. The court should grant it and protect the right to vote, recognizing that First Amendment rights do not extend to threats of violence and voter intimidation.
Since Trump fanned the false flames of voter fraud during the 2020 presidential election, conspiracies about mail-in balloting have continued to grow. A great deal of the attention has been on ballot drop boxes. These are like mailboxes that are set up by election officials in order to collect absentee ballots directly rather than having the ballots delivered through the U.S. postal service. The use of drop boxes increased dramatically during the 2020 election cycle, when many voters who feared contracting Covid-19 at a polling place chose instead to vote by absentee ballot.
There has been no indication of any widespread fraud through the use of ballot drop boxes. Nonetheless, conspiracy theories about the drop boxes have continued to circulate, fueled in part by a widely debunked film by Dinesh D’Souza, “2000 Mules,” which uses false and unproven claims to try to show drop boxes being used for fraud. Reporting by NBC News shows that ballot drop box conspiracies have flooded Trump’s social media website, Truth Social, and that has led to organizing on the ground, including in places like Arizona.