Briefing

The controversy over Arizona's armed ballot watchers, explained

When does a First Amendment activity become intimidation?

If you're casting an early ballot in Arizona, be prepared for some intense and probably unwelcome scrutiny.

Concerns about voter intimidation during this year's midterm elections have arisen in the Grand Canyon State, thanks to reports of masked and armed observers standing watch near outdoor ballot drop boxes in the Phoenix suburbs, The Associated Press reports. The Justice Department on Monday "stepped into" a lawsuit challenging the monitors, warning that the First Amendment "affords no protection for threats of harm directed at voters." (A judge on Tuesday "sharply curtailed" the activities of the ballot box watchers, The New York Times reports, limiting their ability to take photos or videos of voters.)

All of this comes two years after then-President Donald Trump falsely claimed that the 2020 presidential election had been stolen from him. Arizona was at the center of many conspiracy theories — including rumors about the misuse of drop boxes — spread by Trump and his right-wing allies. (A post-election audit ended up showing that President Biden actually won the state by a slightly larger margin than previously thought.) The latest controversy demonstrates that the conspiracy theories persist even when Trump isn't on the ballot. So who is watching the ballot boxes? Why? And is it intimidating to voters? Here's everything you need to know:

What's going on in Arizona?

"Clean Elections USA, an outfit led by fringe conspiracists, have called for volunteers to show up at ballot drop boxes around the state," The Daily Beast reports. Somebody has been showing up: On Oct. 24, two masked men in tactical gear were observed camping near a drop box in Mesa, and a week earlier men in camouflage outfits took pictures of Arizonans dropping off ballots in downtown Phoenix. Naturally, all of this is discomfiting to people who just want to drop off their votes — The Daily Beast interviewed one voter who decided to drop off her ballot at a staffed voting center rather than a drop box "where she feared someone might take a photo of her license plate or follow her." In Maricopa County, there have been nine formal complaints of voter intimidation referred to law enforcement.

Is this activity legal? 

That's in dispute. "Technically, as long as people stay at least 75 feet away from the drop boxes, there's nothing illegal about filming or monitoring the sites," NPR reports. And indeed, a federal judge last week refused to grant an order blocking right-wing groups from observing those locations. "While this case certainly presents serious questions, the Court cannot craft an injunction without violating the First Amendment," wrote U.S. District Court Judge Michael Liburdi. (He was appointed to his position by Trump.) That's when the Department of Justice stepped in. In Monday's filing, federal lawyers warned that "certain kinds of citizen-led monitoring are more likely to put voters in reasonable fear of harassment, intimidation, coercion, or interference with their voting rights," and thus might run afoul of the Voting Rights Act.

On Tuesday, though, Judge Liburdi decided some balance was needed: "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," he said in issuing the order to limit the monitors.

Back up. Why is this happening?

As previously mentioned, Arizona has been a hotbed of election conspiracy theories since the 2020 election. The Republican candidate for secretary of state — that is, Arizona's top elections official — is Mark Finchem, one of the most notorious of the many GOP election deniers running for office across the country this year. He has defended the armed ballot monitors. "It's not illegal to stand in a parking lot," Finchem said in a live stream, as reported by The Washington Post. He noted that Arizona is a "constitutional carry state" that allows residents to be armed in public, and "encouraged people to take photos or videos, including of voters' license plates."

Conspiracy-minded right-wing activists in Arizona have also reportedly taken some inspiration from 2000 Mules, a debunked documentary from Dinesh D'Souza that falsely "claims mobile-phone data obtained by the group shows a coordinated effort by hundreds of people around the country — deemed 'mules' — to stuff election drop boxes" with votes for Biden, The Arizona Republic reports

But this isn't just happening in Arizona, is it? 

Nope, although the disruptions are usually more subtle than guns and camouflage. Across the country, GOP activists "are inserting themselves in the vote count, with a broad and aggressive effort to monitor voting in search of evidence that confirms their theories" that elections are fraudulent, The New York Times reports. The tactics include "vigilante searches for fraud" and taking testimony from Republican-allied poll workers to mount possible legal challenges to election results. (Another new tactic: Flooding elections offices with Freedom of Information requests to bog down officials with paperwork.) And they've crossed lines at times: A Republican poll worker in Michigan is accused of tampering with an election computer, while activists in Texas and Alabama have reportedly disrupted operations in those states. 

So what can and will be done? 

The Justice Department is probably going to be more aggressive in the coming days, The Wall Street Journal reports. Federal officials "will be in the field observing whether polling places are in compliance with federal voting-rights law" and to take complaints about violations across the country. "The Justice Department has an obligation to guarantee a free and fair vote by everyone who's qualified to vote," Attorney General Merrick Garland said last week. In the meantime, Arizona officials are stationing sheriff's deputies at ballot sites and have even put up a chain-link fence around one voting location. 

But some damage may already have been done by a few alarming incidents. "It creates the conditions whereby, around the country, it could deter people from voting, and cause people to be nervous because they don't know what could happen in their own areas," election expert Rick Hasen tells Vox, "so I think the effects are much wider than what's happening in a particular county in Arizona."

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