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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION

ROY COCKRUM; SCOTT COMER; and,
ERIC SCHOENBERG
Plaintiffs,
v.
DONALD J. TRUMP FOR PRESIDENT,
INC.,
Defendant.

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Civil Action No. 3:18-cv-484-HEH

BRIEF OF AMICI CURIAE CAMPAIGN LEGAL CENTER AND PROFESSOR DANIEL
ORTIZ IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS PLAINTIFFS’
FIRST AMENDED COMPLAINT

Susan R. Podolsky, Va. Bar No. 27891
LAW OFFICES OF SUSAN R. PODOLSKY
1800 Diagonal Road, Suite 600
Alexandria, Virginia 22314
Tel.: (571) 366-1702
Fax: (703) 647-6009
spodolsky@podolskylaw.com
Paul M. Smith, (pro hac vice pending)
J. Gerald Hebert, Va. Bar No. 38432
Charquia Wright Va. Bar. No. 92972
CAMPAIGN LEGAL CENTER
1411 K Street, NW, Suite 1400
Washington, D.C. 20005
Tel.: (202) 736-2200
Fax: (202) 736-2222

Counsel for Amici Curiae

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TABLE OF CONTENTS
STATEMENT OF INTEREST ........................................................................................................1
SUMMARY OF ARGUMENT .......................................................................................................3
ARGUMENT ...................................................................................................................................5
I.

II.

Defendant Makes Several Erroneous Assertions About § 1985(3) Based on
Misreading the Statutory Text and Case Law. .............................................................5
A.

The Support or Advocacy Clauses of § 1985(3) Do Not Require State
Action or the Identification of an Independent Constitutional Right Being
Violated. ..........................................................................................................7

B.

Release of Sensitive Personal Information Can Constitute Intimidation and
Injury for the Purposes of § 1985(3). ............................................................10

C.

Defendant Can Conspire to Intimidate and Injure Where the Intimidation
or Injury Is Merely a Tactic for Achieving a Larger Goal. ...........................15

Congress’s Intent in Passing § 1985(3) Was to Stop Intimidation and Injury
Serious Enough to Deter Political Engagement. .......................................................16
A.

Reconstruction ..............................................................................................16

B.

Congressional Action to Stop Clandestine Bands of Private Conspirators ..17

C.

Application of the KKK Act to the Defendant’s Alleged Conduct ..............18

CONCLUSION ..............................................................................................................................20

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TABLE OF AUTHORITIES
Cases:

Page(s)

Bray v. Alexandria Women’s Health Clinic,
506 U.S. 263 (1993) ............................................................................................................9
Ex Parte Yarbrough,
110 U.S. 651 (1884) .............................................................................................................9
Great Am. Fed. S. & L. Ass'n v. Novotny,
442 U.S. 366 (1979) ............................................................................................................8
Griffin v. Breckenridge,
403 U.S. 88 (1971) .......................................................................................................6, 8, 9
Halprin v. Prairie Single Family Homes of Dearborn Park Ass’n,
388 F.3d 327 (7th Cir. 2004) .............................................................................................11
Kush v. Rutledge,
460 U.S. 719 (1983) ..................................................................................................3, 6, 10
Leocal v. Ashcroft,
543 U.S. 1 (2004) ...............................................................................................................10
League of United Latin Am. Citizens—Richmond Reg. Council 4614 (“LULAC”) et al. v. Publ.
Interest Legal Foundation (“PILF”) et al.,1:18-cv-00423-LO-IDD (E.D. Va., Aug. 13,
2018). ......................................................................................................................... passim
MCI Telecomms. Corp. v. AT&T Co.,
512 U.S. 218 (1994) ...........................................................................................................10
Paynes v. Lee,
377 F.2d 61 (5th Cir. 1967) ................................................................................................9
People Helpers, Inc. v. City of Richmond,
789 F. Supp. 725 (E.D. Va. 1992) .....................................................................................12
Silverman v. Newspaper & Mail Deliverers’ Union of N.Y. and Vicinity,
No. 97 Civ. 0040(RLE), 1999 WL 893398 (S.D.N.Y. Oct. 18, 1999) .............................11
United Bhd. of Carpenters Local 610 v. Scott,
463 U.S. 825 (1983) ........................................................................................................8, 9
United States v. Beaty,
288 F.2d 653 (6th Cir. 1961) .............................................................................................12
United States v. Bruce,
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353 F.2d 474 (5th Cir. 1965) .............................................................................................12
United States v. Deal,
6 Race Rel. L. Rep. 474 (W.D. La. 1961)..........................................................................11
United States v. Nguyen,
673 F.3d 1259 (9th Cir. 2012) .....................................................................................12, 13
Constitution:

Page(s)

U.S. Const. amend. XIII § 1.............................................................................................................8
U.S. Const. amend. XIII.................................................................................................................16
U.S. Const. amend. XIV ................................................................................................................16
U.S. Const. amend. XV..................................................................................................................16
Federal Statutes, Rules, and Regulations:

Page(s)

42 U.S.C. § 1985(2) .......................................................................................................................11
42 U.S.C. § 1985(3) ............................................................................................................... passim
42 U.S.C. § 3617 ............................................................................................................................11
52 U.S.C. § 10101(b) ....................................................................................................................12
Miscellaneous Resources:

Page(s)

Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the
United States (Basic Books ed., 2000)...............................................................................13
Ben Cady & Tom Glazer, Voters Strike Back: Litigating Against Modern Voter
Intimidation, 39 N.Y.U. Rev. L. & Soc. Change 173 (2015) ..................................6, 11, 12
Craig C. Donsanto & Nancy L. Simmons, Public Integrity Section, U.S. Dep’t of
Justice, Federal Prosecution of Election Offenses (2007) .................................................13
Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877
(Henry Steele Commager & Richard B. Morris eds., 1988)....................................4, 16, 17
Guide to Protecting the Confidentiality of Personally Identifiable Information (PII),
National Institute of Standards and Technology (2010) ....................................................13
Hearing on Equifax: Continuing to Monitor Data-Broker Cybersecurity Before the Subcomm.
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on Privacy, Tech. & the Law of the S. Judiciary Comm.,115th Cong. (2017) ..................14
Mark Fockele, A Construction of Section 1985(c) in Light of Its Original Purpose,
46 U. Chi. L. Rev. 402 (1979) ...........................................................................................17
Memorandum, Preparing for and Responding to a Breach of Personally Identifiable
Information, Executive Office of the President, Office of Management and Budget
(Jan. 3, 2017)......................................................................................................................14
Noah Webster, An American Dictionary of the English Language (1867) ...................................10
Remarks on Signing the Identity Theft Penalty Enhancement Act, 2004 (Book II)
Pub. Papers 1221 (July 15, 2004) ......................................................................................14
Statement of Rep. John Coburn (R-Ind.), Congressional Globe, 42nd Congress, 1st Session .....18

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STATEMENT OF INTEREST
Amicus curiae, Campaign Legal Center (CLC), is a nonpartisan nonprofit organization that
has been working for fifteen years to advance democracy through law. Amicus CLC has litigated
many voting rights cases in federal courts, including arguing as counsel for the plaintiffs in the
recent United States Supreme Court case, Gill v. Whitford, No. 16-1161, as counsel for plaintiffs
in Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016) (challenging Texas's photo ID law), and as
counsel for plaintiffs in LULAC v. Reagan, No. 2:17-cv-04102 (D. Ariz. 2017) (challenging
Arizona's dual registration system). CLC has filed amicus curiae briefs in every major voting rights
case before the Supreme Court in recent years including Cooper v. Harris, 137 S. Ct. 1455
(2017), Evenwel v. Abbott, 136 S. Ct. 1120 (2016), and Shelby County v. Holder, 133 S. Ct. 2612
(2013).
Amicus curiae, Professor Daniel R. Ortiz, is the Michael J. and Jane R. Horvitz
Distinguished Professor of Law and the Director of the Supreme Court Litigation Clinic at the
University of Virginia School of Law. Prof. Ortiz has been a member of the Virginia law faculty
since 1985. He teaches constitutional law, administrative law, electoral law, civil procedure and
legal theory. In 2001, Prof. Ortiz served under Presidents Carter and Ford as Coordinator of the
National Commission on Federal Election Reform’s Task Force on Legal and Constitutional
Issues. The Task Force advised the Commission on electoral law and issued several published
reports, which Prof. Ortiz wrote or edited. Congress and the states have enacted many of the
Commission’s proposals into law. From 1995 until 1997, Prof. Ortiz chaired the American Bar
Association’s election law committee (Section of Administrative Law and Regulatory Practice).
Prof. Ortiz advises and represents a variety of parties on constitutional law and election law in the
courts and in legislatures. He has written or helped write many Supreme Court and appellate briefs

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on election law and other issues. The views expressed in this brief are his and do not purport to
represent the views of the University of Virginia School of Law, the University of Virginia, or the
Commonwealth of Virginia.
In sum, amici have a demonstrated interest in the protection of civil rights and the health
of our representative democracy, and thus the interpretation and application of 42 U.S.C. § 1985(3)
to conduct that intimidates people from offering their support or advocacy of candidates for federal
office or injures people on account of such support or advocacy.

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SUMMARY OF ARGUMENT
Plaintiffs’ Amended Complaint states a colorable claim under 42 U.S.C. § 1985(3)
(hereinafter “§ 1985(3)”). Defendant misreads the plain language of § 1985(3), misinterprets
longstanding Supreme Court precedent, and ignores an important recent decision by Judge
O’Grady involving similar issues. As a result, Defendant fails to recognize the full scope of the
statutory rights and protections created by § 1985(3). This brief will explain the Defendant’s
misunderstandings and describe how Plaintiffs’ interpretation of § 1985(3) is consistent with its
text, precedent, and legislative history.
Section 1985(3) provides a cause of action for citizens subject to a conspiracy of two or
more persons to prevent them by force, intimidation, or threat from supporting or advocating for
certain candidates in a federal election (clause three of § 1985(3)), or to injure them in person or
property on account of such support or advocacy (clause four of § 1985(3)). This is exactly the
conduct that Defendant is alleged to have engaged in, and as such, the relevant clauses of § 1985(3)
correctly apply to the instant case. Amended Complaint (hereinafter “Compl.”) ¶¶ 257-270.
Beginning with the text and precedent, § 1985(3) is a very long, run-on sentence containing
four semi-colons that divide it into five operative clauses. Each of the first four clauses articulates
a separate cause of action. The Supreme Court has explained that the first two clauses should be
read separately from the latter two because the former authorize claims related to violations of
“equal protection of the laws.” Kush v. Rutledge, 460 U.S. 719, 726 (1983). In contrast, as Judge
O’Grady recently recognized, clauses three and four of § 1985(3) authorize claims related to
“support or advocacy” for candidates in federal elections. See League of United Latin Am.
Citizens—Richmond Region Council 4614 (“LULAC”) et al. v. Pub. Interest Legal Foundation
(“PILF”) et al., ECF No. 63, at 8-11, No. 1:18-cv-00423-LO-IDD (E.D. Va. Aug. 13, 2018.). This

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brief will refer to the first two clauses as the “equal protection clauses of § 1985(3)” and clauses
three and four as the “support-or-advocacy clauses of § 1985(3).”
Defendant makes three erroneous assertions about the interpretation of the support or
advocacy clauses of § 1985(3). First, Defendant seeks to apply a series of doctrinal limitations that
– as Supreme Court precedent makes eminently clear – apply only to the equal protection clauses
of § 1985(3). Campaign Br. at 4-11, 17-22. Second, Defendant incorrectly limits the support-oradvocacy clauses to physical violence. Campaign Br. at 17-20. Third, Defendant incorrectly argues
that even though the effect of the conspiracy may have been to intimidate and injure Plaintiffs, it
was not the purpose of the conduct and so it does not violate § 1985(3). Campaign Br. at 10.
Part I of this brief will explain why each of the Defendant’s assertions is incorrect and why
the conduct alleged by Plaintiffs is sufficient to state a claim according to the requirements of the
text of § 1985(3). Part II will analyze the enactment history of § 1985(3) and show how this history
supports the plain reading of the text of the support or advocacy clauses of § 1985(3) established
in Part I. Briefly, § 1985(3) was enacted as part of the Enforcement Act of 1871, which is often
called the Ku Klux Klan Act (“KKK Act”). During Reconstruction, the Klan was founded as part
of the effort to re-establish white supremacy in the South. The Klan sought to attain this goal by
interfering with the political process; it wanted to advance the Democratic Party in the Southern
States and stop anyone (black or white) from associating with, supporting, or voting for the
Republican Party. Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, 42528 (Henry Steele Commager & Richard B. Morris eds., 1988)). The legislative history of § 1985(3)
indicates that Congress was primarily concerned with the politically motivated nature of the Klan’s
conduct – specifically, that the Klan deterred Republicans from political participation through acts
of intimidation. Part II also explains that, in the context of the internet age, the conduct alleged in

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this case falls within the conduct proscribed by the support or advocacy clauses of § 1985(3),
because it is serious enough to deter political participation by instilling a sense of fear and thereby
undermine the proper functioning of the democratic process.
The Plaintiffs have pled sufficient allegations to meet the requirements of the support-oradvocacy clauses of § 1985(3), as properly interpreted in light of the text and history of the
provision.
ARGUMENT
I.

Defendant Makes Several Erroneous Assertions About § 1985(3) Based on
Misreading the Statutory Text and Case Law.
To understand § 1985(3), it is useful to break out its five clauses, each of which is separated

by a semi-colon:
If two or more persons in any State or Territory conspire or go in disguise on the highway
or on the premises of another, for the purpose of depriving, either directly or indirectly,
any person or class of persons of the equal protection of the laws, or of equal privileges
and immunities under the laws;
or for the purpose of preventing or hindering the constituted authorities of any State or
Territory from giving or securing to all persons within such State or Territory the equal
protection of the laws;
or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen
who is lawfully entitled to vote, from giving his support or advocacy in a legal manner,
toward or in favor of the election of any lawfully qualified person as an elector for President
or Vice President, or as a Member of Congress of the United States;
or to injure any citizen in person or property on account of such support or advocacy;
in any case of conspiracy set forth in this section, if one or more persons engaged therein
do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby
another is injured in his person or property, or deprived of having and exercising any right
or privilege of a citizen of the United States, the party so injured or deprived may have an
action for the recovery of damages occasioned by such injury or deprivation, against any
one or more of the conspirators.
42 U.S.C. § 1985(3) (emphasis added).

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Reviewing § 1985(3)’s five clauses in this way clarifies that the first four clauses set out
separate causes of action, and the fifth clause sets out the remedies provided for violations of those
causes of action. The first two clauses include a common phrase: “equal protection of the laws”
(clause one prohibits conspiring to deprive persons of equal protection of the laws, while clause
two prohibits conspiring to prevent or hinder state authorities from securing equal protection of
the laws). Similarly, clauses three and four include a common phrase: “support or advocacy”
(clause three prohibits conspiring to prevent by intimidation a citizen from supporting or
advocating for certain candidates in federal elections, while clause four prohibits conspiring to
injure any citizen on account of their support or advocacy for certain candidates in federal
elections). Clause five states that parties injured “in person or property” may recover damages
from any of the co-conspirators.
The Supreme Court has recognized that the two equal protection clauses of § 1985(3) are
distinct from its support or advocacy clauses, and should be interpreted differently. See Kush v.
Rutledge, 460 U.S. at 726 (“Although Griffin itself arose under the first clause of § 1985(3),
petitioners argue that its reasoning should be applied to the remaining portions of § 1985 as well.
We cannot accept that argument . . . .”); see also Ben Cady & Tom Glazer, Voters Strike Back:
Litigating Against Modern Voter Intimidation, 39 N.Y.U. Rev. L. & Soc. Change 173, 203-04
(2015). Judge O’Grady similarly recognized this distinction and consequently denied a motion to
dismiss a § 1985(3) support-or-advocacy claim. See PILF, ECF No. 63 at 9 (explaining why a
“claim arising under the ‘support and advocacy’ clause of Section 1985(3) is subject to a different
standard than that which courts have applied to claims arising under Section 1985(3)’s equal
protection clauses”).

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Defendant makes three main arguments as to why the Plaintiffs’ pleadings are insufficient
to state a claim under the text of § 1985(3). First, Defendant argues that the support-or-advocacy
clauses of § 1985(3) require proof of state action and the identification of a separate constitutional
right that was violated by Defendant. Campaign Br. at 20-22. Second, Defendant suggests that the
release of sensitive personal information cannot be intimidation or injury under § 1985(3) because
it is not physical. Campaign Br. at 17-20. Finally, Defendant argues that even though the effect of
the conspiracy may have been to intimidate and injure Plaintiffs, it was not the purpose of the
conduct and so it does not violate § 1985(3). Campaign Br. at 10-11. Each of these arguments is
erroneous.
A.

The Support or Advocacy Clauses of § 1985(3) Do Not Require State Action
or the Identification of an Independent Constitutional Right Being Violated.

Defendant mistakenly asserts that Plaintiffs allege a conspiracy to violate their First
Amendment rights. Campaign Br. at 20-22. In reality, Plaintiffs do not allege in Count III a
violation of their constitutional rights. Rather, the Complaint alleges a violation of Plaintiffs’
statutory rights under clauses three and four of § 1985(3): “Defendant and others conspired to
prevent by intimidation eligible voters from giving their support or advocacy in a legal manner for
a candidate in the presidential election,” Compl. ¶ 265 (a violation of clause three of § 1985(3)),
and “Defendant and others conspired to injure American citizens in their persons and property on
account of their support or advocacy in a legal manner for a candidate for President of the United
States,” id. ¶ 266 (a violation of clause four of § 1985(3)). See generally Compl. ¶¶ 257-270. There
are no allegations made under the equal protection clauses of § 1985(3). As a result, the doctrinal
requirements of those clauses—such as requiring state action or the identification of a violation of
an independent constitutional right –do not apply.

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In order to grasp why the support-or-advocacy clauses do not require state action or the
identification of an independent constitutional right being violated, it is useful to understand why
these requirements can apply to the equal protection clauses of § 1985(3). The equal protection
clauses of § 1985(3) “provide[] no substantive rights [them]sel[ves],” Great Am. Fed. S. & L. Ass'n
v. Novotny, 442 U.S. 366, 372 (1979) (“Novotny”); they merely refer to the deprivation of either
“equal protection of the laws” or “equal privileges and immunities.” This means that “[t]he rights,
privileges, and immunities that [the equal protection clauses of] § 1985(3) vindicate[] must be
found elsewhere.” United Bhd. of Carpenters Local 610 v. Scott, 463 U.S. 825, 833 (1983)
(“Carpenters”). Thus, plaintiffs asserting § 1985(3) equal protection claims must identify a
separate constitutional right being violated – either a denial of equal protection of the laws or a
denial of some other right covered by the reference to “equal privileges and immunities.”
That means that the equal protection clauses typically require a showing of state action,
because nearly all of the relevant constitutional rights require state action. For example, if plaintiffs
claim an infringement of First Amendment rights, it will be “necessary for respondents to prove
that the State was somehow involved in or affected by the conspiracy.” Carpenters, 463 U.S. at
833. However, even the equal protection clauses do not depend upon a state action when the
underlying constitutional right protects against private conduct, such as a claim of conspiracy to
deprive individuals of their rights under the Thirteenth Amendment. See Griffin v. Breckenridge,
403 U.S. 88, 104-05 (1971). The Thirteenth Amendment, after all, applies to private conduct. U.S.
Const. amend. XIII § 1 (“Neither slavery nor involuntary servitude . . . shall exist within the United
States . . . .”).
And so, in summary, to allege a violation of the equal protection clauses of § 1985(3), one
must allege: (1) a “racial, or perhaps otherwise class-based” animus, Griffin v. Breckenridge, 403

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U.S. at 102; see also Carpenters, 463 U.S. at 834-35, 1 (2) a violation of an independent
constitutional right, and, if the independent constitutional right applies only to official actions, then
one must also allege (3) state action.
By contrast, the support-or-advocacy clauses of § 1985(3) establish free-standing statutory
protections (against conspiracies to prevent by force, intimidation, or threat citizens from
supporting or advocating for certain candidates in federal elections or to injure citizens in person
or property on account of such support or advocacy). These statutory protections are firmly
grounded in the authority of Congress under the Elections Clause. See Ex Parte Yarbrough, 110
U.S. 651, 661-62, (1884) (affirming the support-and-advocacy clause as an exercise of Congress’s
authority under the Elections Clause “to make additional laws for the free, the pure, and the safe
exercise of this right of voting”); see also PILF, ECF No. 63, at 6 (explaining that the anti-voter
intimidation provision in the Voting Rights Act was based on Congress’s authority under the
Elections Clause, not the Fifteenth Amendment). No separate right need be identified under the
First Amendment or any other constitutional provision. See PILF, ECF No. 63 at 11 (reviewing
cases and concluding that the support-and-advocacy clause “unlike the equal protection part of
Section 1985(3) does not require… violation of a separate substantive right”); see also, e.g.,
Paynes v. Lee, 377 F.2d 61, 63-64 (5th Cir. 1967). Further, given that no separate constitutional
right needs to be implicated, the prohibitions of the support-or-advocacy clauses of § 1985(3) do
not require state action; instead, they apply, as the language of the provision suggests, when
“persons conspire” in violation of the provision. 2

1

Defendant does not raise the issue of whether discriminatory animus is required under the equal
protection clauses of § 1985(3), but given the jurisprudence, it is listed here for the sake of
completeness.
2
Note also, that the support-or-advocacy clauses of § 1985(3) do not require the proof of racial or
class-based animus because they do not include the language of “equal protection.” See Bray v.
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B.

Release of Sensitive Personal Information Can Constitute Intimidation and
Injury for the Purposes of § 1985(3).

Defendant’s misreading of 1985(3) also causes it to assert that § 1985(3) only prohibits
“physical violence or its threat.” Campaign Br. at 17. Injury need not be physical in order constitute
intimidation within the meaning of § 1985(3). To understand that the alleged conduct constitutes
intimidation, we must understand what the statute means when it prohibits “intimidation.” In
statutory interpretation, words are given their ordinary or natural meaning. Leocal v. Ashcroft, 543
U.S. 1, 8-9 (2004) (quoting Smith v. United States, 508 U.S. 223, 228 (1993)). Dictionaries can
also be useful to courts in discerning the ordinary meaning of a term. MCI Telecomms. Corp. v.
AT&T Co., 512 U.S. 218, 225-28 (1994).
With respect to the natural and ordinary interpretation of “intimidation” in § 1985(3), the
Court can draw guidance from three sources: (1) the dictionary; (2) interpretations of the word
“intimidation” adopted by other federal courts applying other similar statutes; and (3) the
interpretation of the term “intimidation” adopted by the Department of Justice. Each of these
sources suggests that the conduct alleged here constitutes intimidation for the purposes of §
1985(3). While the precise historical conduct that § 1985(3) targeted was intimidation by disguised
Klansmen, modern conspiracies seeking to intimidate and injure people and deter them from
offering their support or advocacy for a candidate for President tend to use more modern methods,
like the hacking and release of sensitive personal information.
Starting with the dictionary, Webster’s dictionary from 1867 defines intimidate as “[t]o
make fearful; to inspire with fear.—S[yn]. [t]o dishearten; dispirit; abash; deter; frighten; terrify.”

Alexandria Women’s Health Clinic, 506 U.S. 263, 267 (1993) (stating that the two-part Griffin test
applies to “the first clause of § 1985(3)”); Kush v. Rutledge, 460 U.S. at 726 (declining to extend
the limitations discussed in Griffin to the other § 1985 claims because they are not similarly limited
by the equal protection clause).
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Noah

Webster,

An

American

Dictionary

of

the

English

Language

555

(1867),

https://archive.org/stream/americandictio00we#page/554/mode/2up; see also Cady & Glazer,
supra, at 196 (summarizing the definition of intimidation using multiple regular and legal
dictionaries). This definition does not limit the term to acts or threats of physical violence; it turns
on the state of mind that the perpetrator creates in the victim(s).
Moving to federal civil rights cases, the term “intimidation” is used in statutes other than
§ 1985(3) and the understanding of that term reflected in cases dealing with those statutes is
instructive. The most similar use of the term is in 42 U.S.C. § 1985(2) – which prohibits
conspiracies to intimidate parties or witnesses in connection with legal proceedings. In interpreting
that section, a district court held that emotional stress, not merely physical injury, could give rise
to a claim for witness intimidation under that provision. Silverman v. Newspaper & Mail
Deliverers’ Union of N.Y. and Vicinity, No. 97 Civ. 0040(RLE), 1999 WL 893398, at *4 (S.D.N.Y.
Oct. 18, 1999). In that case, the Southern District of New York explained that though the Civil
Rights Act of 1871 was “adopted to address physical intimidation . . . which often resulted from
Klan violence,” this “was not the only goal of the statute.” Id. The Court found that the statute was
“also designed to address improper interference with the judicial process,” and therefore the
plaintiff could bring a claim alleging that there was interference “with the witness’ ability to give
‘free, full and truthful testimony’ in federal court.” Id.
Similarly, 42 U.S.C. § 3617 makes it unlawful to “intimidate, threaten, or interfere with” a
person for enjoying or exercising fair housing rights. In cases involving this statute, courts have
held that plaintiffs stated claims for intimidation even where the defendant’s conduct did not
include physical violence. See, e.g., Halprin v. Prairie Single Family Homes of Dearborn Park
Ass’n, 388 F.3d 327, 330 (7th Cir. 2004) (scrawling of a racial slur on plaintiffs’ property); People

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Helpers, Inc. v. City of Richmond, 789 F. Supp. 725, 733 (E.D. Va. 1992) (excessive investigations
by the city of a rental property).
Another statute, 52 U.S.C. § 10101(b), also includes a prohibition on the use of
intimidation, in this case with respect to interfering with the right to vote in federal elections. In
interpreting the term “intimidate,” courts have found that economic coercion (not merely physical
violence) is included in the definition of that term. See United States v. Beaty, 288 F.2d 653, 656
(6th Cir. 1961) (white landowners evicted and refused to deal in good faith with black tenant
farmers for the purpose of interfering with their voting rights, which gave rise to a voter
intimidation claim); United States v. Deal, 6 Race Rel. L. Rep. 474 (W.D. La. 1961) (white
business owners refused to engage in business transactions with black farmers who attempted to
register to vote); United States v. Bruce, 353 F.2d 474 (5th Cir. 1965) (white landowners ordered
black defendant, an insurance collector active in encouraging voter registrations, to stay off their
property, preventing him from reaching business clients). See also Cady & Glazer, supra, at 193202 (summarizing dozens of other cases where courts interpreted the term “intimidate” or
“intimidation” with respect to civil rights).
Two recent cases are particularly useful for defining modern intimidation in an electoral
context. In United States v. Nguyen, the defendant was alleged to have been involved with a
campaign to mail 14,000 letters to newly registered voters with Hispanic surnames. The letters
warned that if the recipients voted in the election, their personal information would be collected
by the government and made available to organizations that were “against immigration.” 673 F.3d
1259, 1261 (9th Cir. 2012). The court found that intimidation (in this case under California’s state
criminal voter intimidation statute) is not “limited to displays or applications of force, but can be
achieved through manipulation and suggestion,” that is, intimidation may be “subtle, rather than

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forcefully coercive.” Id. at 1265. In Nguyen, the intimidating conduct was the threat of release of
personal information. And in LULAC v. PILF, the Eastern District of Virginia held that publicizing
“names and personal information” by means of “a report condemning felonious voter registration
in a clear effort to subject the named individuals to public opprobium” is a form of prohibited voter
intimidation under the Voting Rights Act. PILF, ECF No. 63, at 7-8.
Finally , the Department of Justice defines “intimidation” as conduct designed to “deter
or influence voting activity through threats to deprive voters of something they already have,
such as jobs, government benefits, or, in extreme cases, their personal safety.” Craig C. Donsanto
& Nancy L. Simmons, Public Integrity Section, U.S. Dep’t of Justice, Federal Prosecution of
Election Offenses 54 (2007),
https://www.justice.gov/sites/default/files/criminal/legacy/2013/09/30/electbook-0507.pdf.
The descriptions and examples of intimidation outlined in this section demonstrate that
there are a variety of ways to intimidate individuals with respect to their civil rights. In the 1870s,
marauding hordes of violent conspirators were a common method of intimidation. See Alexander
Keyssar, The Right to Vote: The Contested History of Democracy in the United States 105-07
(Basic Books eds., 2000). More recently, conspirators have become subtler in their intimidation
techniques, but no less ruthless. Threatening to destroy an individual’s economic livelihood,
subjecting her to relentless investigations, or exposing her sensitive personal information may all
constitute conduct designed to intimidate.
With respect to the release of sensitive personal information and its ability to form part of
conduct that intimidates or injures, we can gain additional insight into the effect of the release of
such information from various national sources. The release of personally identifiable
information is known to put individuals at risk of “identity theft, embarrassment, or blackmail.”

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Guide to Protecting the Confidentiality of Personally Identifiable Information (PII), National
Institute of Standards and Technology ES-1 (2010),
http://nvlpubs.nist.gov/nistpubs/Legacy/SP/nistspecialpublication800-122.pdf.
Similarly, the Office of Management and Budget has noted that certain data are
“particularly sensitive and may alone present an increased risk of harm to the individual. These
data elements include, but are not limited to, SSNs, passport numbers, driver's license numbers,
state identification numbers, bank account numbers, passwords, and biometric identifiers.”
Memorandum, Preparing for and Responding to a Breach of Personally Identifiable Information,
Executive Office of the President, Office of Management and Budget (Jan. 3, 2017),
https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2017/m-17-12_0.pdf.
Additionally, notable public officials have discussed the serious harm that the release of
personal financial information can cause. See Remarks on Signing the Identity Theft Penalty
Enhancement

Act,

2004

(Book

II)

Pub.

Papers

1221,

1346

(July

15,

2004),

https://www.gpo.gov/fdsys/pkg/PPP-2004-book2/pdf/PPP-2004-book2-doc-pg1346-2.pdf.
(“[I]dentity theft leaves the victim poor and feeling terribly violated.”); Hearing on Equifax:
Continuing to Monitor Data-Broker Cybersecurity Before the Subcomm. on Privacy, Tech. & the
Law of the S. Judiciary Comm.,115th Cong. (2017) (Statement of Sen. Chuck Grassley, Chairman,
Senate

Judiciary

Committee),

https://www.judiciary.senate.gov/imo/media/doc/10-04-

17%20Grassley%20Statement.pdf (in response to the recent breach of Equifax’s security, Senator
Grassley explained that “[t]he information hackers obtained or gained access to in the Equifax
breach is the most sensitive personal information used by thieves to commit identity theft. Let that
sink in. A credit card number or bank account information can be changed with a phone call. But
you can’t change your social security number and date of birth.”).

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Plaintiffs have pled colorable claims of intimidation and injury by the wide dissemination
of their sensitive personal, private information, and those claims are properly put to a fact-finder
to decide if the conduct alleged rises to the level of intimidation or injury for the purposes of §
1985(3).
C.

Defendant Can Conspire to Intimidate and Injure Where the Intimidation or
Injury Is a Tactic for Achieving a Larger Goal.

Defendant incorrectly asserts that it cannot be guilty of a conspiracy to intimidate or injure
supporters of a candidate for President because “injury [was not] the purpose of their agreement”
and was “merely the effect.” Campaign Br. at 10. Section 1985(3) reaches all conspiracies that
include intimidation and injury of voters and supporters as a tactic, even where the conspiracy also
has other aims. Defendant attempts to distinguish the intended effect of supporting Trump from
the supposedly unintended effect of intimidating Clinton voters; these two goals are one in the
same because, according to the Complaint, Defendant intended to bolster support for Trump by
intimidating Clinton voters. See Compl. at ¶¶ 175-80. Plaintiffs allege that Defendant intimidated
and injured the Plaintiffs by hacking and releasing their sensitive personal information knowing
that it would deter Plaintiffs and others similarly situated from civic participation. See id. That is
enough as a matter of law.
In summary, pursuant to the text and precedent of § 1985(3), the following are the elements
of liability under the third clause of § 1985(3): one must show (1) that two or more persons (2)
conspired (3) to intimidate (4) an eligible voter (5) from giving support or advocacy to a
Presidential candidate. Similarly, in order to prove a violation of the fourth clause of § 1985(3),
one must show (1) that two or more persons (2) conspired (3) to injure (4) a citizen (5) on account
of her support or advocacy of a Presidential candidate. No other proof (e.g., state action, violence,
a sole purpose to intimidate) is required.

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II.

Congress’s Intent in Passing § 1985(3) Was to Stop Intimidation and Injury Serious
Enough to Deter Political Engagement.
While the precise historical conduct that § 1985(3) targeted was intimidation by disguised

Klansmen, there is every reason to apply the statute now to modern conspiracies seeking to
intimidate and injure individuals and scare the public from offering their support or advocacy for
candidates through the release of sensitive personal information.
At the height of Reconstruction, Congress was alarmed that members of the Klan, and
similar groups, were engaged in a campaign to intimidate and injure individuals for the purpose of
subverting the political process and producing electoral outcomes favorable to one political party.
And so, in 1871, Congress passed § 1985(3) to combat the Klan’s tactics of political suppression.
The legislative history and historical backdrop make it clear that the purpose of § 1985(3) was to
protect individuals from fear or harm caused by conspirators when giving their political support or
advocacy. Properly understood in light of this original purpose, § 1985(3) prohibits the type of
organized, politically motivated harassment that the Complaint alleges.
A.

Reconstruction

Immediately following the Civil War, the federal government undertook a broad-based
effort to bring African-American voters into the political process. By 1870, Congress had passed
the Thirteenth, Fourteenth, and Fifteenth Amendments. U.S. Const. amends. XIII, XIV, XV
(“Reconstruction Amendments”). These ended slavery, promised the equal protection of the laws,
and outlawed the denial or abridgement of the right to vote based on race, color, or previous
condition of servitude.
The Reconstruction Amendments, along with local organizing efforts by groups like the
Union League, and, most powerfully, the Republican Party itself, led to a period of widespread
electoral success for African-American voters and the Republican Party. Foner, supra, at 291-

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307. A coalition of newly enfranchised black voters and a sympathetic minority of white voters
brought nearly all of the Southern governorships and legislatures under Republican control and
elected numerous African-American representatives to Congress. Foner, supra, at 353.
In communities across the South, the Klan and similar organizations 3 responded to these
sweeping changes with a sustained campaign of violence, threats, and intimidation. Much of the
Klan’s activity was political in nature. It was directed primarily at black Republicans and, to a
lesser degree, their white Republican allies, and it was designed to deter them from engaging in
the political process. The Klan was, in effect, “a military force serving the interests of the
Democratic party, the planter class, and all those who desired the restoration of white supremacy.”
Id. at 425.
B.

Congressional Action to Stop Clandestine Bands of Private Conspirators

The escalation of hostility and intimidation against black Americans and supporters of the
Republican Party drew the attention of Congress. As the legislative history of the bill establishing
§ 1985(3) reflects, a primary concern of Congress was that the Klan’s conduct was politically
motivated – specifically, that the Klan sought to undermine the democratic process by deterring
Republicans from political engagement through intimidation. See, e.g., Mark Fockele, A
Construction of Section 1985(c) in Light of Its Original Purpose, 46 U. Chi. L. Rev. 402, 407-11
(1979). The record is unambiguous on this point:
Such is the conclusion stated in the majority report of the Senate Select Committee to
Investigate Alleged Outrages in the Southern States: “[I]t is clearly established . . . [t]hat
the Ku-Klux organization does exist, has a political purpose, is composed of members of
the democratic or conservative party, [and] has sought to carry out its purpose by murders,
whippings, intimidations, and violence.” This theme was sounded again and again during
the debates in Congress, the Republicans steadily insisting on it and the Democrats
steadfastly denying it. The immediate goal of the Klan, as seen by the Republican majority,
3

Foner recounts organizations like the “Knights of the White Camelia” and the “White
Brotherhood.” Foner, supra, at 425.
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was to wrest control of the state governments from the Republican party and to reestablish
Democratic hegemony in the South.
Id. at 408 (quoting H.R. Rep. No. 1, 42d Cong., 1st Sess. xxx-xxxi) (footnotes omitted).
The Congressional Record makes clear that members wanted to curb politically motivated
conduct that interfered with the proper functioning of the democratic process. See, e.g., Statement
of Rep. John Coburn (R-Ind.), Congressional Globe, 42nd Congress, 1st Session, 460,
https://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=099/llcg099.db&recNum=575
(“The Democrats do get and use the entire benefit of the Ku Klux Klans. It is exactly, as they say,
political. They get up a reign of terror, they encourage crimes of the most frightful nature to carry
elections. We would suppress them, would punish them; we would restore order, fair-dealing,
equality, and peace, to secure free elections.”).
C.

Application of the KKK Act to the Defendant’s Alleged Conduct

The drafters of § 1985(3)’s support-or-advocacy clauses could not have foreseen the
development of the internet. They could not have imagined the existence of a worldwide
information repository and communications system, and that nearly all of a person’s sensitive
information and private communications could be stolen and published for the world to see.
However, old crimes can occur in modern contexts. If a thief steals from a victim’s electronic bank
account, it is still theft even if no paper currency has changed hands. And in the context of the
internet age, that politically targeted intimidation or injury occurred online is no reason that
Defendant should escape liability under the support or advocacy clauses of § 1985(3).
Plaintiffs allege, inter alia, that on account of giving their support for a Presidential
candidate, Defendant conspired to hack the extremely sensitive financial and personal information
owned by Plaintiffs and publish that information online for the world to see. Compl. at ¶¶ 259-

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270. No more is required for liability under the support or advocacy clauses of § 1985(3).
Defendant’s conduct sends a clear message to Plaintiffs – and to all Americans who are considering
working in politics or donating to a political party – that the price of that political engagement may
be the theft of their identities and the publication of their most private personal information. This
is a message that could undeniably encourage illegal conduct and deter political participation and
thereby undermine the proper functioning of the democratic process. This Court should hold that
the activities alleged in the Complaint fall within the conduct proscribed by § 1985(3)’s support
or advocacy clauses.

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CONCLUSION
For the foregoing reasons, the Court should deny the Defendant’s motion to dismiss.
Dated this 15th day of November 2018.

Respectfully submitted,
/s/ Susan R. Podolsky
Susan R. Podolsky (Virginia Bar No. 27891)
LAW OFFICES OF SUSAN R. PODOLSKY
1800 Diagonal Road, Suite 600
Alexandria, VA 22314
Tel.: (571) 366-1702
Fax: (703) 647-6009
Email: spodolsky@podolskylaw.com

Paul M. Smith (pro hac vice pending)
J. Gerald Hebert (Virginia Bar No. 38432)
Charquia Wright (Virginia Bar No. 92972)
CAMPAIGN LEGAL CENTER
1411 K Street NW, Suite 1400
Washington, D.C. 20005
Tel.: (202) 736-2200
Fax: (202) 736-2222
Email: psmith@campaignlegalcenter.org
ghebert@campaignlegalcenter.org
cwright@campaignlegalcenter.org
Counsel for Amici Curiae

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CERTIFICATE OF SERVICE
I hereby certify that on this 15th day of November, 2018, I transmitted the foregoing document
to the named parties’ emails by means of an electronic filing pursuant to the ECF system.

/s/ Susan R. Podolsky
Susan R. Podolsky (Virginia Bar No. 27891)
LAW OFFICES OF SUSAN R. PODOLSKY
1800 Diagonal Road, Suite 600
Alexandria, VA 22314
Tel.: (571) 366-1702
Fax: (703) 647-6009
Email: spodolsky@podolskylaw.com

Dated: November 15, 2018

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