Judge weighing whether to block Clean Elections USA from using name in AZ

By Howard Fischer/Capitol Media Services
Published: Tuesday, November 8, 2022 - 2:15pm
Updated: Tuesday, November 8, 2022 - 2:57pm

A judge is weighing whether to block Clean Elections USA, the group that has been monitoring drop boxes here, from using that name in Arizona.

Tom Collins, executive director of the Citizens Clean Elections Commission, told Maricopa County Superior Court Judge Scott Blaney on Monday that the group's activities and statements have resulted in confusion among voters who believe it is his commission that has been sending people out to keep an eye on the boxes. And that, he said, undermines the credibility of the voter-created commission to provide nonpartisan information to voters.

During the hearing, Melody Jennings, who founded Clean Elections USA, acknowledged that the commission has been using the name for more than 20 years. That includes referring to the commission and its efforts by the shorthand of "Clean Elections."

By contrast, she said, her organization has operated as Clean Elections USA for only several months. And Jennings said that Arizona and its elections have made up a "great deal" of the activities of her group.

Jennings, who represented herself, also testified that after she was served with the lawsuit she told an attorney for the commission that she is contemplating changing the name of her organization.

She said though, she wanted to do it "in a collaborative way." And what that meant, she told the judge, was the commission whose name she was accused of appropriating, actually working with her to correct what she said is an incorrect view that Clean Elections USA and its drop-box monitoring is interested in keeping people from voting.

In fact, Jennings said some of the problems with the confusion are the fault of the commission for not working with her.

"I would have appreciated somebody saying, 'What are you bringing to the table, how can we work through these things and change our own possible misconceptions, if there are any,' " she said, adding that no one had asked.

"I would have been happy to educate you all since you were all in the business," Jennings said. "Since you all were in the business of educating people, I would have liked to educate you."

But Collins testified that his prime and immediate interest was to stop Jennings and her organization from using the words "Clean Elections" in Arizona, saying their activities in watching the boxes and their comments saying the 2020 elections were not conducted fairly were was causing irreparable harm.

"The commissioners themselves and our staff has tried to maintain a nonpartisan reputation," he said. Collins called that "particularly important" since the commission is involved in voter education, including conducting debates, providing information about candidates and telling people how they can participate in the voting process.

"It's important that we be a trusted source of information and that folks know that the information they're going to get from those publications and our web site ... is factual and unbiased," he said.

What happened, Collins said, is people were contacting the commission saying they don't like the fact that it was out there monitoring ballot drop boxes.

"That, to me, demonstrates that some folks ... were confused about the nature of what Clean Elections USA was doing versus what Clean Elections does," he said.

The hearing comes less than a week after a federal judge sharply restricted the activities of Jennings and her organization in monitoring drop boxes. That includes a prohibition on taking videos of people who are within 75 feet of the boxes and posting images of voters who they claim are violating state law solely because they deposited more than one ballot in a drop box.

And while Liburdi did not preclude people from simply watching while being at least 75 feet away, he did say anyone who is visibly armed or dressed in tactical gear must remain at least 250 feet from the drop boxes.

Jennings is not appealing that ruling. But on Monday, as she sought to tell the judge that her organization's goals are not so different than Clean Elections, Jennings said people have been misled about the mission of Clean Elections USA.

"We are absolutely for voters," she said, describing her box watchers as "grandmothers, sitting in lawn chairs, with their little sun hats on."

And Jennings said that was "not to intimidate" but "you know there are people there protecting the vote from people we believe would have nefarious intent to come and stuff the boxes with more ballots than is legal."

Jennings also lashed out at the press coverage.

"I feel like the media's amped up a lot of this and created a lot of confusion and vitriol and caused us to polarize," she said. And that, said Jennings, is why her organization and the commission "should work together and not let that happen."

But James Smith, representing the commission, called all that "irrelevant" to the legal question of what he said is the illegal misuse of the Clean Elections name.

Smith did not dispute that the commission never sought or obtained a trademark or copyright of its name. But he said that's not legally necessary saying there is a "common law" protection for the name that keeps Jennings from using it.

"She concedes confusion among the public," he told the judge. "And, candidly, that is kind of the end of the inquiry."

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