“It is imperative we balance the defendants’ right to engage in First Amendment-protected activity with the plaintiffs’ right to act without intimidation or harassment,” said Judge Liburdi after a marathon hearing in Phoenix punctuated by testimony from a Mesa, Ariz., man who said he and his wife were menaced when they went to vote last month.
The State of the 2022 Midterm Elections
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According to the man, who testified without revealing his name publicly for fear of harassment, eight to 10 people filmed the couple and told them they were “hunting mules.” Images of him and his car were posted online and Ms. Jennings subsequently appeared on the podcast of Stephen K. Bannon, the former Trump adviser, saying they had caught a mule and “blasted it out viral.”
Judge Liburdi called his experience particularly compelling, and noted that it went well beyond testimony from last week in a parallel case against Clean Elections USA. In that lawsuit, brought by the Arizona Alliance for Retired Americans and Voto Latino, the judge declined to enjoin Clean Elections USA’s activities, saying he had not seen any evidence that real harm had befallen any voters. That ruling is being appealed in the Ninth Circuit.
In his concluding remarks on Tuesday, Judge Liburdi pointed to incorrect statements made by Ms. Jennings in posts on social media and in interviews that only spouses could return ballots on behalf of voters in Arizona, when in fact housemates and caregivers are legally permitted to do so in the state.
“This does not prohibit Miss Jennings from correctly stating what the law is,” said Judge Liburdi, noting that he would also draft a preliminary injunction against Clean Elections USA in coming days. “I just have a problem with her stating it incorrectly in a way that is intimidating or coercive to voting behavior.”