Arizona becomes epicenter of concerns about ballot drop box security and voter intimidation

Days after an Arizona federal judge barred a far-right group from taking photos, confronting voters dropping off ballots or wearing body armor and brandishing weapons, reports of voter intimidation continued to persist at drop boxes and be referred to law enforcement by the Arizona Secretary of State's Office.

That's despite the hope by election watchdog groups that the judge's Nov. 1 order would lessen tensions and concerns as voters submit ballots in the battleground state.

"I have never been more intimidated in my life trying to vote and standing only three feet from the box," one voter wrote to officials on Thursday, according to records of referrals and reports provided by the Arizona Secretary of State's Office and reviewed by USA TODAY, after two men a couple feet from the drop box allegedly filmed the names on their own and their mom's and son's ballots as well as the voter's license plate. "I’m very worried now for my safety."

Arizona has quickly become the nation's epicenter of ballot drop box watching and voter intimidation reports in the lead up to the 2022 midterm election, especially in Maricopa County, where the vast majority of voter complaints have originated since Oct. 16.

A USA TODAY analysis of state data found voter or election worker intimidation incident reports have occurred at a near-daily rate since then.

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Voting in Arizona:What to know about recent controversies and ballot access in 2022

Such alleged intimidation efforts have led Maricopa County Sheriff Paul Penzone to dedicate additional resources, including a team of plain-clothed detectives to cover as much ground as possible at election-related sites across the county. 

"Their job is to continuously monitor those areas to see if there are any individuals out there trying to intimidate voters," Penzone told USA TODAY. "If so, they'll activate, educate everybody on the law, and if they have to, they'll enforce it."

The detectives will be in street clothes to try to prevent people from feeling uncomfortable or creating a more militant situation by having armed and uniformed deputies on scene, Penzone said. But, if necessary, he added, uniformed resources would be sent out.

"This has to be priority," Penzone said. "If people don't have trust in their freedom to vote, then our nation is broken. And if people don’t have trust in law enforcement to protect that freedom, then we fail them."

But a lawyer for the group subject to the federal judge's order said it raised questions about limiting the First Amendment rights of the organization and those associated with it. He also said monitoring ballot drop boxes helped contribute to election security.

14 reports flagged for law enforcement

State data analyzed by USA TODAY shows:

• Over the roughly two-and-a-half weeks from Oct. 16 through Nov. 3, there have been at least 17 incidents reported to the Secretary of State's Office primarily involving alleged intimidation of voters accessing ballot drop boxes – or an average of nearly one a day.
• Thirteen drop box incidents and an additional emailed threat to election workers were flagged by election officials and referred to the state attorney general, the U.S. Department of Justice or the Federal Bureau of Investigation.
• The bulk of the referred reports occurred at three sites in Phoenix and one in neighboring Mesa, Arizona.

"Voters should be able to cast their ballot without fear of intimidation," Katie Hobbs, Arizona's secretary of state, said in a statement to USA TODAY. "We encourage anyone who experiences intimidation at a voting location to contact their county recorder, Secretary of State’s Office, or law enforcement."

A restraining order and a debate over the First Amendment

A handful of the referred incidents were also included in a lawsuit filed by the League of Women Voters of Arizona, which alleged that the defendants Clean Elections USA , a grassroots organization founded by co-defendant Melody Jennings, organized the Dropbox Initiative 2022 to "surveil, harass, and intimidate voters" during the 2022 election in Arizona and to spread disinformation about the legality of drop box voting, according to court documents filed by the pro-voter organization.

A Trump-appointed federal judge barred the defendants and any affiliates from carrying firearms or wearing body armor within 250 feet of a ballot drop box; intentionally following individuals delivering ballots to a drop box or getting within 75 feet of a ballot drop box or the entrance to where one is located; and speaking to or yelling at someone returning ballots or within 75 feet of the drop box unless they are spoken to first.

The temporary restraining order was issued Nov. 1 and remains in effect for 14 days, including for nearly a week after Election Day and into the tabulation period. But because it restrains specific entities, it doesn't prevent others unrelated to the defendants from engaging in similar behavior.

Alexander Kolodin, co-counsel representing Clean Elections USA, said that the order prohibiting his client and those affiliated with the group from talking to voters about election law struck him as a First Amendment problem. So too, Kolodin said, was the part of the order prohibiting his client from filming within 75 feet of drop boxes.

"So USA TODAY can go film somebody at a drop box, but not our clients," said Kolodin, who separately also serves as co-counsel for the Arizona Republican Party, which has no connection to the case.

But the Justice Department disagreed in a statement of interest filed in the Arizona case in which it argued that the First Amendment doesn't protect alleged "threats of harm directed at voters'" or enable "unlawful intimidation, threats, and coercion."

As an Arizona Republican, Kolodin said he believes "drop box monitors are fulfilling a useful function, they’re increasing the security of our elections... It’s almost impossible to catch election fraud after the fact, so the state has an interest in preventing it from occurring in the first place."

But Ben Ginsberg, a Washington, D.C.-based attorney who served as national counsel to the Bush-Cheney presidential campaigns in 2000 and 2004 and other Republican campaigns, noted that the type of drop box surveillance taking place in Arizona was very problematic.

"It's wrong, it's wrong, it's wrong, and it's bad," Ginsberg said. "It's also worth pointing out, that despite the heavy-handed theatrical tactics, it hasn't produced any evidence of fraudulent votes."

The monitoring efforts have largely grown out of the debunked conspiracy theory that so-called "ballot mules" illegally deposited, or "stuffed" ballots in drop boxes during the 2020 election. The 2022 film "2000 Mules" falsely claims to show evidence like surveillance footage, but it has been thoroughly discredited by experts for its use of innocent images and flawed analysis to peddle the conspiracy theory.

In one of the reported incidents referred to law enforcement that USA TODAY reviewed, a couple dropping off their ballots in the evening in Mesa, Ariz. on Oct. 17 were accused of being mules by a group of eight to 10 people in camp chairs waiting for voters near a ballot drop box.

Intent to intimidate not needed under federal law

On Thursday at 11:50 a.m., a voter visiting the ballot drop box at the Maricopa County Recorders Office saw a man photographing all vehicles, their license plates and the voters depositing their ballots.

"Their presence and actions made a normally safe and uninstructed area uncomfortable and uncertain to navigate," the voter wrote to state election officials, according to records of referrals and reports provided by the Secretary of State's Office and reviewed by USA TODAY. "I feel his action was none other than intentional intimidation of voters."

The complaint was referred to law enforcement.

Voter intimidation is illegal under federal law and is assessed based on how a "reasonable" voter feels in a given situation. It doesn't matter whether the individual accused of intimidation actually intends it, noted Katie Friel, a lawyer and fellow in the Brennan Center's Democracy Program.

"If an action is having the effect that a reasonable voter would find it intimidating, that's illegal in all 50 states any time, before Election Day, on Election Day or after," Friel said. "Voter intimidation is illegal wherever it is happening, if in a car, right next to a drop box, a mile from a drop box, that is illegal."

Voter intimidation that prevents the casting of a vote is also a felony in seven states, including Arizona, Florida, Georgia and Wisconsin, according to the Brennan Center.

"One sign of a mature democracy is that you have stable, safe, voting as a process," said Robert Spitzer, an emeritus professor of political science for SUNY Cortland.

Voter: 'It is intimidating'

For some residents of Arizona, the fear of what may happen at the ballot drop box has made them decide to return their ballots in the mail.

That's what 76-year-old Barbara Loving, who lives with her husband in Tucson, Ariz., did this year after hearing about everything going on in the Phoenix area and seeing community members ride around in their pickups with large political flags and guns.

"You don’t have a choice when you go drop off your ballot, and if somebody is standing there with a gun, it is intimidating," Loving said. "There are too many wackos with guns. You don't know what's going to happen."

​​​​​Rachel Homer, a counsel for Protect Democracy, who represented the League of Women Voters of Arizona in the case, said the hope is the judge's order helps "calm things down and stops some of the most egregious voter intimidation happening."

She said the nonprofit, nonpartisan voter rights organization is continuing to monitor the situation in Arizona but hopes there will be no more need for action.

"Everyone of all political persuasion should be able to vote without fear when dropping off their ballot," Homer said.

Maricopa County Sheriff Penzone also noted that he has a team working with other law enforcement agencies and the FBI to monitor and track any incoming intelligence that might prevent violence. Once the votes are cast, Penzone said, a significant amount of staff will be dedicated to securing the tabulation location and its staff "beyond any level ever seen before."

The Maricopa County drop boxes are monitored by video, Penzone said, noting that interested individuals could go online and see all the voting locations and watch them from a distance, rather than doing so – and potentially intimidating voters – in person.

"The vast majority of voters are going to have a totally normal experience casting their vote in this election," Friel, with the Brennan Center, said. "But it’s important to know that there are broad state and federal laws to protect them in this election. If you experience any intimidation contact poll worker, election officials, or contact the election protection hotline."

Are you experiencing voter intimidation or having trouble voting in Arizona? Contact Tami Abdollah via Twitter @latams or email tami(at)usatoday.com.