Case 1:18-cv-00423-LO-IDD Document 63 Filed 08/13/18 Page 1 of 14 PageID# 489

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

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CITIZENS-RICHMOND REGION COUNCIL )
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4614 ETAL,
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Plaintiff,
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V.
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LEAGUE OF UNITED LATIN AMERICAN

PUBLIC INTEREST LEGAL FOUNDATION

ETAL,

Defendant.

Civil No. l:18-cv-00423
Hon. Liam O'Grady

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)
)
)
)

MEMORANDUM OPINION & ORDER

Currently before the Court is Defendants' Motion to Dismiss(Dkt. 30; 31). The Court has
considered the evidence and the pleadings and heard the parties' oral arguments on June 22,
2018. Dkt. 61. The Court finds good cause to DENY the motion.
I.

Background
On April 12,2018,Plaintiff League of United Latin American Citizens("LULAC")and

four other individually named Plaintiffs ("Bonilla,""Freeman,""Gearhart," and "Rosen")filed

suit against Defendants Public Interest Legal Foundation ("PILF")and J. Christian Adams.

Compl.

12-18. Plaintiffs allege that in September 2016, Defendants, in conjunction with non-

party Virginia Voters Alliance, published a written report titled Alien Invasion /to national

media which accused Virginia voters of"committing multiple, separate felonies, from illegally
registering to vote to casting an ineligible ballot." Id. at

24-25, 31. Specifically, Plaintiffs

allege that Defendants obtained from Virginia county registrars several lists of"[Virginia voter]
registrants who had been purged from the voter rolls." Id. at

1

27,46. Plaintiffs assert that

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Defendants published this information, presenting it as evidence of illegal electoral activity in
Virginia. E. at 1]1] 27-29, 46.

The voter registration lists obtained by Defendant, however, contained registrants who
were, in fact, properly voting citizens who had been removed from the voting rolls for various
administrative reasons. E. at 1] 32. Plaintiffs allege, on information and belief, that Defendants
were informed by Virginia election of?cials ?that they were drawing false conclusions from the
registrar information and running the signi?cant risk of wrongfully accusing constitutionally
eligible voters of committing felony voter fraud.? E. at 1] 33. Defendants published Alien
Invasion I anyway. 

Plaintiffs allege that even after Virginia election of?cials repeatedly informed Defendants
of the methodological de?ciencies of Alien Invasion 1, Defendants published a sequel, Alien
Invasion II, in May 2017. E. at 1] 35. Alien Invasion I ?af?rmatively reiterates the accusation . . .
that certain voters in a number of Virginia jurisdictions . . . were guilty of committing one felony
by registering to vote and likely guilty of committing another felony by actually voting.? E. at
1] 38. Similar to Alien Invasion 1, ?Alien Invasion [1 was published along with a roughly eight-
hundred-page appendix containing voter registration forms, which included the names, home
addresses, and telephone numbers of the alleged felons.? E. at 1] 41. Initially, each individually
named Plaintiffs personally identifying information was contained in the Alien Invasion II
appendix. E. at 1] 42. Defendants subsequently published a revised version which removed
several names from the list. E. at 1] 43. Nevertheless, this revision failed to exclude the names

and information of Plaintiffs Bonilla and Freeman, who remain in the ?nal version of the report.

1d.

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Plaintiffs allege multiple harms resulting from Defendants? conduct. E. at 111] 48-51.
Speci?cally, the individually named Plaintiffs report the detrimental impact of adverse publicity,
intimidation, embarrassment, and fear of harassment associated with their participation in the
electoral process. I_d. Organizational Plaintiff LULAC reports that its ?members and the Latino
community [it] represents have been and continue to be intimidated and threatened by
Defendants asserting that registering to vote and/or voting constitutes an unlawful ?alien
invasion? that should be prosecuted.? 1  63. Plaintiff LULAC also alleges that ?[i]nstead of
engaging in its ordinary course initiatives, [it] must devote time and resources to combat the false
narrative that Latinos who vote are doing so illegally.? E. at 1] 64.

Plaintiffs allege violations of 42 U.S.C. 1985(3) and 11(b) of the Voting Rights Act.
The individually named Plaintiffs also allege defamation. In their Motion to Dismiss, Defendants
seek to bar claims due to lack of standing, and also seek a broad dismissal of the
Complaint for Plaintiffs? failure to state a claim. Dkt. 30; 31.

11. Legal Standard

To survive a motion to dismiss under Federal Rule of Civil Procedure a
complaint must contain suf?cient factual information to ?state a claim to relief that is plausible
on its face.? Bell Atl. Corp. v. Twomblv, 550 U.S. 544, 550 (2007). A motion to dismiss
pursuant to Rule 12(b)(6) must be considered in combination with Rule which requires
?a short and plain statement of the claim showing that the pleader is entitled to relief,? Fed. R.
Civ. P. so as to ?give the defendant fair notice of what the . . . claim is and the grounds
upon which it rests.? Twombly, 550 U.S. at 555.

While ?detailed factual allegations? are not required, Rule 8 demands that a plaintiff

provide more than mere labels and conclusions stating that the plaintiff is entitled to relief. EL

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Because a Rule 12(b)(6) motion tests the suf?ciency of a complaint without resolving factual
disputes, a district court ?must accept as true all of the factual allegations contained in the
complaint? and ?draw all reasonable inferences in favor of the plaintif Kensington Volunteer
Fire Dep?t v. Montgomery County, 684 F.3d 462, 467 (4th Cir. 2012) (quoting E.I. du Pont de
Nemours Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)).
111. Analysis

Defendants raise four issues in support of their Motion to Dismiss: (1) Plaintiff LULAC
does not have standing to invoke federal jurisdiction; (2) Plaintiffs have failed to state a claim
under 11(b) of the Voting Rights Act; (3) Plaintiffs have failed to state a 1985(3) claim; and
(4) Plaintiffs have failed to state a defamation claim and, regardless, Defendants are entitled to
quali?ed immunity under Virginia?s statute. Dkt. 33 at 7-26.

a. LULAC ?s Standing

Defendants do not dispute that standing is proper with respect to the individually named
Plaintiffs. Rather, Defendants challenge Plaintiff standing. E. at 7-10. However, both
the Supreme Court and the Fourth Circuit have held that the presence of one party with standing
is sufficient to satisfy Article case-or-controversy requirement. Bowsher v. Synar, 478
US. 714, 721 (1986); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.. 429 US. 252, 263-
64 (1977); Bostic v. Schaefer, 760 .3d 352, 370 (4th Cir. 2014). Accordingly, the Court ought

not inquire into organizational standing at this time.1 The Court notes, however, that

 

The Complaint pleads standing under the representational and organizational theories. Comp]. 1  72.
The Court ?nds that LULAC lacks standing under the representational theory because it has failed to ?establish
[that] at least one identi?ed member suffered or [will] suffer harm.? Summers v. Earth Island Inst. 555 US. 488,
498 (2009) (emphasis added). Under the organizational theory, the Court expresses doubt over the traceability and
redressability of alleged injury. 53 Friends of the Earth, 204 F.3d 149, 154 (4th Cir. 2000). Further, there
is an issue of material fact over whether LULAC has su??ered a ?concrete and demonstrable injury to [its] activities
with a consequent drain on [its] resources constituting more than simply a setback to the organization?s abstract
social interests.? Havens Realty Corp. v. Coleman, 455 US. 363, 379 (1982); Goldstein v. Costco Whom
Corp, 278 F. Supp. 2d 766, 769-70 (E.D. Va. 2003); see also Ass?n for Retarded Citizens v. Dallas County Mental

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the ?One Good Plaintiff Rule? is often limited to cases where each Plaintiff raises the same legal
issues and requests the same type of remedy.2 Sierra Club v. El Paso Props, Inc., No. Ol-cv-
02163, 2007 WL 45985, at *2-3 (D. Colo. Jan. 5, 2007); Inc. v. Chapman, 108 F. Supp.
2d 611, 619-20 (W.D. Va. 2000). For this reason, the Court invites further brie?ng on the matter
following discovery, should there be good cause.
b. Section 1 of the Voting Rights Act
Defendants argue that Plaintiffs? 11(b) claim should fail because Section 11(b)
applies only to state actors, (ii) Section 11(b) claims require speci?c intent and racial animus,
and Plaintiffs fail to suf?ciently allege ?intimidation? under the meaning of 11(b). Dkt. 33
at 10-14. For the following reasons, the Court ?nds these arguments unpersuasive.
i. Section 1 reach to private actors
As to the issue of whether 11(b) claims can be brought against non-state actors, the
statutory text is dispositive. The relevant portion of 11(b) reads:
No person, whether acting under color of law or otherwise, shall
intimidate, threaten, or coerce, or attempt to intimidate, threaten, or
coerce any person for voting or attempting to vote, or intimidate,

threaten, or coerce, or attempt to intimidate, threaten, or coerce any
person for urging or aiding any person to vote or attempt to vote.

52 U.S.C. 10307(b) (2012) (emphasis added). In statutory interpretation, ?words are given their

?ordinary or natural? meaning.? Leocal v. Ashcroft, 543 US. 1, 8-9 (2004) (quoting Smith v.

 

Health Mental Retardation Ctr. Bd. of Trustees, 19 F.3d 241, 244 (5th Cir. 1994) (?The mere fact that an
organization redirects some of its resources to litigation and legal counseling in response to actions or inactions of
another party is insuf?cient to impart standing upon the organization?).

2 Aaron-Andrew P. Bruhl, One Good Plaintiff Is Not Enough, 67 DUKE LJ. 481, 497-503 (2017). The Court
recognizes the undesirable outcomes of an overbroad application of the ?One Good Plaintiff Rule,? including
improper awards of fees and costs, confusion over preclusive effects of udgments, excessively broad injunctions,
and the inhibition of precedent development. 1d, at 506.

Case Document 63 Filed 08/13/18 Page 6 of 14 Page D# 494

United States, 508 US. 223, 228 (1993)). Here, the language ?or otherwise? indicates
Congressional intent to reach both government and private conduct under 11(b).

As a counterpoint to the statutory text, Defendants cite WM,
666 F. App?x 279, 280 (4th Cir. 2016), reh?g denied (Jan. 3, 2017) in support of the proposition
that the Voting Rights Act derives constitutional authority from the Fifteenth
Amendment, which applies only to state actors. ?e Dkt. 33 at 10. However, as Plaintiffs
recognize, merely notes for context in a footnote how the VRA works ?in tandem? with the
15th Amendment; it does not hold, or even suggest, the scope is limited to that of the
15th Amendment.? Dkt. 50 at 17. Defendants also fail to present any binding case law that
precludes application of 11(b) to private conduct. They cite only to a dissent in Nipper v.
?m_ith, 39 F.3d 1494, 1547 (11th Cir. 1994).

By comparison, multiple Supreme Court opinions hold that the Elections Clause broadly
authorizes federal regulation of ?ballot casting.? Arizona v. Inter Tribal Council of AriL
m, 570 US. 1, 8-9 (2013); United States v. Williams, 341 US. 70, 77 (1951); Smiley v. Holm,
285 US. 355, 366 (1932); Ex Darte Yarbrough, 110 US. 651, 662 (1884). These holdings point
to the Elections Clause not the Fifteenth Amendment as the constitutional authority for
11(b). The plain text of the Elections Clause comports with this reading. U.S. CONST. art. I,
4. Accordingly, the Court holds that 11(b) can reach private conduct.

ii. Section reguirement of speci?c intent and racial animus

Defendants also argue that a 11(b) claim requires a showing of speci?c intent to
intimidate and a showing of racial animus. Dkt. 33 at 10-14. Again, the Court?s analysis begins
with the statutory text of 11(b), which makes no reference to either of Defendants? proposed

requirements. 52 U.S.C. 10307(b) (2012).

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A statutory reading that omits ?speci?c inten and ?racial animus? requirements is
further buttressed by a comparative statutory analysis of 11(b) and 131(b) of the 1957 Civil
Rights Act, a similarly-worded statutory provision on voter intimidation that predated 11(b).
Section 131(b) reads:

No person, whether acting under color of law or otherwise, shall
intimidate, threaten, coerce, or attempt to intimidate, threaten, or
coerce any other person for the purpose of interfering with the

right of such other person to vote or to vote as he may choose, or

of causing such other person to vote for, or not to vote for, any
candidate. . . .

52 U.S.C. 10101(b) (2012) (emphasis added). The text of 11(b), unlike 131(b), plainly
omits ?for the purpose of,? suggesting deliberately unquali?ed reach.

Defendants? reference to nonbinding case law that reads speci?c intent and racial animus
requirements into 11(b) is also unpersuasive. These cases trace back to United States v.
M, which, in fact, adjudicated claims brought under the 1957 Civil Rights Act. 385 F.2d
734, 738 (5th Cir. 1967). Therefore, in the absence of plain statutory text, statutory history, or
binding case law to the contrary, the Court does not ?nd that a showing of speci?c intent or
racial animus is required under 11(b).

Intimidation within the meaning of 11(b)

Defendants also allege that their conduct does not rise to the level of intimidation under
the meaning of 11(b). However, Defendants have linked Plaintiffs? names and personal
information to a report condemning felonious voter registration in a clear effort to subject the
named individuals to public opprobrium. Defendants? suggestion that more is needed to support
a ?nding of intimidation is untenable. Dkt. 33 at 13-14. This is particularly true at the motion
to dismiss stage, where the Court accepts Plaintiffs? well-pleaded facts as true. Plaintiffs have

alleged, plausibly, that the Alien Invasion reports put them in fear of harassment and interference

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with their right to vote. They have alleged intimidation suf?cient to support their 11(b) claim.
Damon v. Hukowitz. 964 F. Supp. 2d 120, 149 (D. Mass. 2013) (?Intimidation means
putting a person in fear for the purpose of compelling or deterring his or her conduct?) (internal
citations omitted).

0. Section I 985 (3)

Defendants argue that Plaintiffs? 1985(3) claim must be dismissed because Plaintiffs
have made only a bare assertion of conspiracy without providing concrete supporting facts and
(ii) Plaintiffs have failed to allege two required elements of a 1985(3) claim: a state action in
violation of an independent right and an action based on a race or class-based invidious
discriminatory animus. Dkt. 33 at 15-21. For the following reasons, these arguments also fail.

i. Conspiracy

Defendants are correct to note that the Fourth Circuit has rejected 1985 claims

whenever a purported conspiracy is alleged in a merely conclusory manner, in the absence of
concrete supporting facts. Thomas v. The Salvation Army Southern Territory, 841 F.3d 632,
637 (4th Cir. 2016); Simmons v. Poe, 47 F.3d 1370, 1377 (4th Cir. 1995). Here, however,
Plaintiffs have suf?ciently alleged facts supporting a conSpiracy in their Complaint. See Compl.
23, 37, 54. At the motion to dismiss stage, these assertions are suf?cient for the claim to
survive.

ii. Section 1985(31?5 reguirement of state action class-based animus

The parties agree that the ?rst two clauses of Section 1985(3) provide no independent
substantive rights and that plaintiffs asserting a claim under those clauses must identify a
violation of a separate constitutional right (and typically show state action). Great Am. Fed.

Sav. Loan Ass?n v. Novotnv, 442 US 366, 373 (1979). Additionally, plaintiffs making a

Case Document 63 Filed 08/13/18 Page 9 of 14 Page D# 497

claim under the ?rst two clauses of Section 1985(3) must allege that some racial or otherwise
class-based invidiously discriminatory animus lay behind the conspirators? action. SQ Kth.
Rutledge, 103 1483, 1487 (1983).

The parties disagree about whether it is proper to apply a different standard to the third
clause of Section 1985(3), described by Plaintiffs as the ?support and advocacy clause.?
Plaintiffs assert that the requirements identi?ed above apply only to the ?rst two clauses of
Section 1985(3): those that refer to equal protection of the law. Because Plaintiffs? claim arises
under the ?support and advocacy? clause, they argue, they need not show a violation of any right
other than that arising under the ?support and advocacy? clause, nor need they allege that any
class-based animus motivated Defendants? actions. Although the case law is not entirely clear,
Plaintiffs persuasively argue that their 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 equal protection clauses.

In Grif?n v. Breckenridge, 403 US. 88 (1971), the Supreme Court considered the
pleading standard for the ?rst clause of Section 1985(3) (?conspiring or going in disguise on the
highway . . . for the purpose of depriving [persons of equal The Court upheld the
application of 1985(3) to purely private conspiracies, and held that plaintiffs must allege a
racial or ?otherwise class-based, invidiously discriminatory animus? by defendants. 1d at 102-
03. Subsequently, the Supreme Court made clear that the second part of 1985(3) does not require
class-based, invidiously discriminatory animus because that part arises from a statutory provision
without language requiring that conspirators act with intent to deprive their victims of equal
protection of the laws. ?rst}, 103 at 1487-88 (explaining that the limiting language in

Grif?n arose under the ?rst clause of 1985(3) and that ?there is no suggestion? that Grif?n?s

Case Document 63 Filed 08/13/18 Page 10 of 14 Page D# 498

reasoning should apply to ?any other portion of 1985?). The Court explained that the
legislative background which gave rise to the equal protection clauses of Section 1985(3) ?does
not apply to the portions of the statute that prohibit interference with federal of?cers, federal
courts, or federal elections.? E. The re?Jsal to extend gm beyond the ?rst clauses of Section
1985(3) was con?rmed in Bray v. Alexandria Women?s Health Clinic, 506 US. 263, 267 (1993)
(?Our precedents establish that in order to prove a private conspiracy in violation of 

clause of 1985(3), a plaintiff must [show some racial or class-based (emphasis

 

added).

In Federer v. Gerhardt, the Eighth Circuit applied this analysis, relying on Q13_h to hold
that ?plaintiffs are not required to show class-based animus as part of a support and advocacy
claim under the second part of Section ederer v. Gephardt, 363 F.3d 754, 760
(8th Cir. 2004); see also McCord v. Bailey, 636 F.2d 606, 614 n.12 (DC. Cir. 1980) (?nding
meaning in the absence of language demanding ?equal protection of the laws? in the ?rst clause
of Section 1985(2)). Cases from the Fourth Circuit do not necessarily contradict this conclusion,
because those cases which have addressed Section 1985(3) claims either focus on the clauses
related to equal protection, or do not explicitly distinguish between different portions of Section
1 985(3).

For example, in Buschi v. Kirven, 775 F.2d 1240, 1257 (4th Cir. 1985), the Fourth
Circuit held that ?an action under Section 1985(3) consists of these essential elements: (1) a
conspiracy of two or more persons; (2) who are motivated by a speci?c class-based, invidiously
discriminatory animus; (3) to deprive the plaintiff of the equal enjoyment of the rights secured by
the law to all; (4) and, which results in injury to the plaintiff as (5) a consequence of an overt act

committed by the defendants in connection with the conspiracy.? However, the court did not

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distinguish between the portions of 1985(3), although the third element identi?ed by the court
(equal enjoyment) suggests a focus on the ?rst clause of 1985(3).

Similarly, in Deressa v. Gobena, 2006 WL 335629 (E.D. Va. Feb. 13, 2006), the court
explained that ?to state a claim for a private conspiracy in violation of the ?rst clause of 42
U.S.C. 1985(3), a plaintiff must allege, inter alia, (1) the some racial, or perhaps otherwise
class-based, invidiously discriminatory animus [lay] behind the conspirators? action, and (2) that
the conspiracy aimed at interfering with rights that are protected against private, as well as
of?cial, encroachment.? E. at *5 (emphasis added). And in Shooting Point= LLC v. Cumming,
238 F. Supp. 2d 729 (ED. Va. 2002), the court required an allegation that the acts of the
defendants were motivated by class-based animus because ?section 1985(3) prohibits
conspiracies to deprive persons of the equal protection of the law.? E. at 739 (emphasis added).
Again, the identi?cation of ?equal protection? suggests the court?s analysis was focused on the
?rst clause of Section 1985(3).

For these reasons, and for good cause shown, the Court ?nds that Plaintiffs have stated a
claim under the ?support and advocacy? clause of Section 1985(3), which unlike the equal
protection part of Section 1985(3) does not require allegations of a race or class-based,
invidiously discriminatory animus or violation of a separate substantive right.

d. Defamation
Under Virginia law, the necessary elements of the tort of defamation are 
publication of (2) an actionable statement with (3) the requisite intent.? Chap_in v. Knight?

Ridder Inc., 993 F.2d 1087, 1092 (4th Cir.l993). To be actionable, a statement ?must be both

 

false and defamatory.? Li. A written statement is per se defamatory when it alleges that an

individual has committed a felony which he or she did not commit. Schnupp v. Smith, 457

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42, 46 (Va. 1995). Regarding the requisite intent requirement, both parties agree that the
proper standard here is negligence, meaning that Defendants ?either knew [the published
statement] to be false, or believing it to be true, lacked reasonable grounds for such belief, or
acted negligently in failing to ascertain the facts on which the publication was based.?
Dragulescu v. Virginia Union Univ., 223 F. Supp. 3d 499, 508 (ED. Va. 2016). In Virginia, a
defendant acts negligently in failing to ascertain the facts on which a publication is based when
they fail to investigate information that poses a substantial danger or risk of reputational injury to
another. Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277, 288 (1987).

Here, all the elements of Virginia?s defamation tort are satis?ed. First, Alien Invasion I
and Alien Invasion II were publications which listed Plaintiffs? names in the attached appendices
of the reports. Comp]. 11 42. Second, Defendants imputed felonious conduct to these individuals
by inference in the reports. For example, Plaintiffs allege, ?[Alien Invasion 1] states clearly: The
United States Attorney in Virginia has done nothing about the felonies committed by 433 aliens
registering in Prince William County alone.? E. at 1] 75 (internal quotation marks omitted). Last,
Plaintiffs assert that Defendants cast aside warnings from Virginia elections of?cials about the
falsehood of their reports on two separate occasions. E. at 33-34. Defendants also fail to show
that they conducted even a cursory investigation of the accuracy of the information they obtained
from the registrars. Accordingly, Plaintiffs have suf?ciently pled that Defendants had
constructive knowledge of the falsity of the information.

With all elements met, the Court looks next at the two af?rmative defenses raised by
Defendants: (1) that Plaintiffs? defamation claims pertaining to Alien Invasion I are barred by
Virginia?s statute of limitations; and (2) that Defendants wield quali?ed immunity for their

statements under Virginia?s statute.

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Virginia?s statute of limitations for defamation is one year. Va. Code Ann. 8.01-
247.1 (West). The parties disagree over whether the defamation claims based on Alien Invasion
I, which was published in September 2016, can be properly raised.3 As noted in Dragulescu,
?each of several communications to a third person by the same defamer is a separate
publication,? and ?each successive publication of an old or preexisting defamatory statement
gives rise to a new cause of action under Virginia law.? 223 F. Supp. 3d at 508.

Defendants fail to rebut Plaintiffs? assertion that Alien Invasion 1] is effectively a
successive publication of an old or preexisting defamatory statement Alien Invasion 1).
Given the textual, thematic, and formalistic parallels between the two publications, the Court
?nds that Alien Invasion II quali?es as a ?republication? for purposes of Plaintiffs? defamation
claim. Accordingly, the limitations period does not bar Plaintiffs? action with respect to either
report.

Finally, Defendants? defense also fails because Defendants do not wield
quali?ed immunity due to their constructive knowledge of the falsity of the information
pertaining to the named Plaintiffs. The relevant portion of Virginia?s statute reads:

The immunity provided by this section shall not apply to any

statements made with actual or constructive knowledge that they
are false or with reckless disregard for whether they are false.

Va. Code Ann. 8.01-223.2 (West). As discussed above, Plaintiffs suf?ciently allege
Defendants? awareness of the risk of the incorrectness of the voter registration data obtained
from the county registrars. Accordingly, Plaintiffs? defamation claim can proceed.

IV. Conclusion

 

3 Both parties recognize that Plaintiffs? defamation claim based upon Alien Invasion which was published in May
2017, is not barred by the limitations period.

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For these reasons, and for good cause shown, the Court hereby DENIES Defendants?
Motion to Dismiss (Dkt. 30; 31). Defendants have fourteen (14) days from the date of this Order

to ?le a responsive pleading.

 

IT IS SO ORDERED.
to c?
i
8 LiamQ?brady
Alexandria, Virginia United?Siates District Judge

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