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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
League of United Latin American Citizens Richmond Region Council 4614, Eliud
Bonilla, Luciania Freeman, Abby Jo
Gearhart, and Jeanne Rosen,

)
)
)
)
)
Plaintiffs,
)
)
v.
) Civil Action No. 1:18cv423 (LO/IDD)
)
Public Interest Legal Foundation
)
and J. Christian Adams,
)
)
Defendants.
)
_________________________________________ )
REPLY MEMORANDUM IN SUPPORT OF
DEFENDANTS’ RULE 12(b)(6) MOTION TO DISMISS

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TABLE OF CONTENTS
I.

INTRODUCTION .............................................................................................................. 1

II.

ARGUMENT ...................................................................................................................... 1
A.

LULAC – Richmond Cites No Authority Establishing That It Has
Standing to Assert the Claims Against PILF and Mr. Adams Alleged in
the Complaint .......................................................................................................... 1
1.
2.

B.

Even if the Voting Rights Act Authorized Claims Against NonGovernment Parties, Plaintiffs’ Allegations Are Insufficient to Establish
Any Violation.......................................................................................................... 7
1.
2.

C.

2.

3.

Plaintiffs’ Opposition cites no factual allegations sufficient to
establish their claim of an unlawful conspiracy in violation of 42
U.S.C. § 1985(3). ...................................................................................... 12
Plaintiffs’ Opposition wrongly ignore the requirement for state
action to establish an unlawful conspiracy under the “Ku Klux
Klan Act.” ................................................................................................. 13
Plaintiffs’ Section 1985 conspiracy claim requires a showing of
racial animus. ............................................................................................ 15

The Allegedly Defamatory Reports Do Not Mention the Individual
Plaintiffs By Name and Are Otherwise Not Actionable As a Matter of
Virginia Law ......................................................................................................... 16
1.

2.
3.
III.

Section 11(b) of the Voting Rights Act does not reach conduct by
private parties .............................................................................................. 7
Publication of the First and Second Reports is not actionable as
“voter intimidation” under Section 11(b) of the Voting Rights Act ........... 9

Plaintiffs’ Inflammatory Claim of a “Ku Klux Klan Act” Conspiracy Is
Not Supported By Any Allegations of Violations of 42 U.S.C. § 1985(3) .......... 12
1.

D.

LULAC – Richmond lacks organizational standing ................................... 1
LULAC – Richmond lacks representational standing. ............................... 4

The Complaint does not allege that Defendants published any
statements, defamatory or otherwise, about any of the individual
named Plaintiffs ........................................................................................ 16
The Complaint does not allege sufficient facts to establish that
Defendants published the Reports with the requisite intent...................... 18
Plaintiffs’ defamation claim should be dismissed pursuant to
Virginia’s anti-SLAPP statute, Virginia Code § 8.01-223.2. ................... 18

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

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TABLE OF AUTHORITIES
Page(s)
Cases
Am. Humanist Ass’n v. Greenville Cty. Sch. Dist.,
652 F. App’x 224 (4th Cir. 2016) ..............................................................................................2
Ariz. Democratic Party v. Ariz. Republican Party,
No. CV-16-03752-PHX-JJT, 2016 WL 8669978 (D. Ariz. Nov. 4, 2016) .............................14
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ...........................................................................................................10, 18
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) .............................................................................................................3, 10
Carwile v. Richmond Newspapers,
82 S.E.2d 588 (Va. 1954).........................................................................................................17
Damon v. Hukowicz,
964 F. Supp. 2d 120 (D. Mass. 2013) ......................................................................................11
Deressa v. Gobena,
No. 1:05CV1334(JCC), 2006 WL 335629 (E.D. Va. Feb. 13, 2006)......................................14
Friends of the Earth, Inc. v. Gaston Copper Recycling Corp.,
204 F.3d 149 (4th Cir. 2000) .....................................................................................................2
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167 (2000) ...........................................................................................................3, 6, 7
Gazarkiewicz v. Town of Kingsford Heights, Indiana,
359 F.3d 933 (7th Cir. 2004) ...................................................................................................19
Goldstein v. Costco Wholesale Corp.,
278 F. Supp. 2d 766 (E.D. Va. 2003) ........................................................................................4
Hatfill v. New York Times Co.,
416 F.3d 320 (4th Cir. 2005) ...................................................................................................17
Hyland v. Raytheon Tech. Servs. Co.,
277 Va. 40, 670 S.E.2d 746 (2009)..........................................................................................17
Kush v. Rutledge,
460 U.S. 719 (1983) .................................................................................................................16

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League of United Latin Am. Citizens v. City of Boerne,
675 F.3d 433 (5th Cir. 2012) .....................................................................................................4
League of United Latin Am. Citizens v. Perry,
548 U.S. 399 (2006) ...................................................................................................................4
Maryland Highways Contractor’s Ass’n, Inc. v. State of Maryland,
933 F.2d 1246 (4th Cir. 1991) ...................................................................................................4
Moore v. PYA Monarch, LLC,
238 F. Supp. 2d 724 (E.D. Va. 2002) ......................................................................................16
Moseke v. Miller and Smith, Inc.,
202 F. Supp. 2d 492 (E.D. Va. 2002) ........................................................................................2
N.C. State Conference of NAACP v. N.C. State Bd. of Elections,
283 F. Supp. 3d 393, 401 (M.D.N.C. 2017) ..............................................................................5
Parson v. Alcorn,
157 F. Supp. 3d 479, 498 (E.D. Va. 2016) ..............................................................................11
Polidi v. Bannon,
226 F. Supp. 3d 615, 623 (E.D. Va. 2016) ........................................................................13, 16
Qimonda AG v. LSI Corp.,
857 F. Supp. 2d 570 (E.D. Va. 2012) ........................................................................................2
S. Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands,
LLC, 713 F.3d 175 (4th Cir. 2013) ......................................................................................5, 17
Schnupp v. Smith,
249 Va. 353, 457 S.E.2d 42 (1995)..........................................................................................17
Simmons v. Poe,
47 F.3d 1370 (4th Cir. 1995) .............................................................................................14, 15
Smiley v. Holm,
285 U.S. 355 (1932) ...................................................................................................................8
Summers v. Earth Island Inst.,
555 U.S. 488 (2009) ...................................................................................................................6
Thomas v. The Salvation Army Southern Territory,
841 F.3d 632 (4th Cir. 2016) .......................................................................................14, 15, 16
U.S. v. Simms,
508 F. Supp. 1179 (W.D. La. 1979).......................................................................................8, 9

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United States v. Carmichael,
685 F.2d 903 (4th Cir. 1982) .....................................................................................................9
Veasey v. Perry,
29 F. Supp. 3d 896, 903 (S.D. Tex. 2014) .............................................................................3, 4
Will Nesbitt Realty, LLC v. Jones,
CL-2016-14234, 2018 Va. Cir. LEXIS 66 (Va. Cir. Ct. Apr. 30, 2018) .................................19
Statutes
Civil Rights Act of 1871, 42 U.S.C. § 1985(3)........................................................1, 12, 13, 14, 15
Voting Rights Act, Section 11(b).............................................................................1, 7, 8, 9, 11, 14
Virginia Code § 8.01-223.2 ...........................................................................................................18
Virginia Code § 9.01-223.2(A) ......................................................................................................19
Other Authorities
1965 U.S.C.C.A.N. ..........................................................................................................................8
Federal Rule of Civil Procedure 12(b)(6) ..............................................................1, 3, 8, 12, 19, 20
United States Constitution .............................................................................................................20

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Defendants, Public Interest Legal Foundation (“PILF”) and J. Christian Adams (“Mr.
Adams”), by counsel, respectfully state as follows for their reply to Plaintiffs’ Opposition to
Defendants’ Rule 12(b)(6) Motion to Dismiss (Dkt. # 50) and the Brief of Amici Curiae (Dkt.
# 51-2).
I.

INTRODUCTION

Plaintiffs’ Opposition raises no arguments and cites no authorities that cure the
deficiencies of their Complaint. By way of their meritless claims of “defamation” and violation
of the Voting Rights Act and “Ku Klux Klan Act,” Plaintiffs seek to deprive PILF and Mr.
Adams of their First Amendment right to advocate for election integrity and to deter PILF, Mr.
Adams, and others from arguing that only citizens of the United States should be permitted to
vote in elections. All of Plaintiffs’ claims are subject to dismissal as a matter of law.
II.
A.

ARGUMENT

LULAC – Richmond Cites No Authority Establishing That It Has Standing
to Assert the Claims Against PILF and Mr. Adams Alleged in the Complaint.
LULAC – Richmond does not dispute that the publications at issue say nothing about the

national origin, ethnicity, race, or any other characteristics of the registered voters who—
according to records that are publicly available as a matter of federal law—are not citizens of the
United States. These publications do not mention Latino Americans anywhere, much less in the
Commonwealth of Virginia or the Richmond metropolitan area. The assertion that LULAC –
Richmond has standing to assert any claims against Defendants has no factual or legal basis.
1.

LULAC – Richmond lacks organizational standing.

LULAC – Richmond lacks standing to assert its claims against Defendants under 42
U.S.C. § 1985(3) and Section 11(b). As an organization, LULAC – Richmond can establish
standing under one of two theories: (1) an organizational theory that enables an organization to

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bring suit on its own behalf, and (2) a representational theory that allows an organization to sue
on behalf of its members. See Moseke v. Miller and Smith, Inc., 202 F. Supp. 2d 492 (E.D. Va.
2002).
Plaintiffs’ Opposition cites no authority to meet its “burden to establish standing by
showing that it suffered an injury that is fairly traceable to the challenged action and that can be
redressed by the court’s decision.” Am. Humanist Ass’n v. Greenville Cty. Sch. Dist., 652 F.
App’x 224, 229 (4th Cir. 2016) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 180–81 (2000)); see also Qimonda AG v. LSI Corp., 857 F. Supp. 2d 570,
575 (E.D. Va. 2012).

LULAC – Richmond cannot satisfy this “traceability” requirement

because it cannot impute to Defendants comments made on the Internet by independent third
parties.

Under the test articulated by the Fourth Circuit, the traceability requirement is

established only if it is “likely that the injury was caused by the conduct complained of and not
by the independent action of some third party not before the court.” Friends of the Earth, Inc. v.
Gaston Copper Recycling Corp., 204 F.3d 149, 154 (4th Cir. 2000).

Indeed, if every

inappropriate remark in online comments sections could serve as the basis for defamation claims
against authors, the courts would be drowning in such cases.
According to Plaintiffs’ Opposition, Defendants’ Motion to Dismiss “ignores the
allegation that ‘Plaintiff LULAC has been and continues to be injured by Defendants’
publication of these reports because it impedes one of LULAC – Richmond’s core goals, the
promotion of political participation’ by creating a narrative that ‘Latinos who vote are doing so
illegally.’” (Resp., ECF No. 50 at 16). Plaintiffs also allege that the Reports “falsely accused
many Latino voters as being noncitizens who were guilty of committing voter fraud.” (Compl.
¶ 64). Yet Plaintiffs fail to identify a single sentence in the Reports that even discusses Latinos,

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much less accuses Latino voters of anything. Although Rule 12(b)(6) requires this Court to
accept the truth of Plaintiffs’ factual allegations, the Complaint must contain sufficient factual
information to “state a claim to relief that is plausible on its face.” See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).

Plaintiffs’ conclusory and unsupported allegations

regarding accusations against Latino voters fail to satisfy that pleading standard.
As Plaintiffs admit, many of the social ills allegedly afflicting the Latino population in
Richmond predate, and exist independent of, the publication of the Reports:
Voters in Latino communities are already subject to scorn and
discrimination because of heated rhetoric directed against Latino and
immigrant communities. For example, in the recent 2017 Virginia
gubernatorial election, the rampant propagation of derogatory information
and generalizations associating Latinos with gangs such as MS-13 or
painting them as criminals caused much despair and despondence amongst
the Latino community in the larger Richmond area.
(Compl. ¶ 64). To meet its burden of establishing organizational standing, LULAC – Richmond
must also show that “it is likely, as opposed to merely speculative, that the injury will be
redressed by a favorable decision.” Laidlaw, 528 U.S. at 181. For purposes of redressability, it
is enough that the relief being sought would “abat[e] current violations and prevent[ ] future
ones,” such as by deterring future violations.

Id. at 187.

These problems in the Latino

community that Plaintiffs admit are independent of Defendants’ actions cannot be redressed by a
favorable decision in this case.
Plaintiffs claim that the fact that LULAC – Richmond has established organizational
standing in other, unrelated voting rights cases means that the Court should find organizational
standing here. Defendants do not claim that LULAC – Richmond could never satisfy the
requirements of organizational standing, just that it fails to do so here. Indeed, the cases that
Plaintiffs cite are all distinguishable from the present facts. In Veasey v. Perry, 29 F. Supp. 3d
896, 903 (S.D. Tex. 2014), LULAC was challenging a voter identification law that would force it
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to divert resources from its normal voter registration activities to educate already-registered
members. In Veasey, the connection between the passage of the voter identification law and the
alleged harm to LULAC’s organizational purpose was much less attenuated and more “fairly
traceable” than in the present case. Neither League of United Latin Am. Citizens v. Perry, 548
U.S. 399 (2006) nor League of United Latin Am. Citizens v. City of Boerne, 675 F.3d 433 (5th
Cir. 2012) contains any discussion whatsoever of the basis for LULAC’s standing. The mere
fact that LULAC has previously established organizational standing, without any other
information, tells the Court nothing about how to evaluate organizational standing in this case.
The determination of organizational standing depends on the specific challenged action and
alleged harm and is therefore dependent on the particular facts of a case. Maryland Highways
Contractor’s Ass’n, Inc. v. State of Maryland, 933 F.2d 1246, 1250 (4th Cir. 1991).
Additionally, the fact that LULAC brings so many other lawsuits actually weakens
Plaintiffs’ diversion of resources claim, as it reinforces the reality that LULAC devotes
significant time and money nationally to pursuing litigation on behalf of its members. This
Court has previously found that an organization that was “in the business of litigating alleged
disability discrimination” could not say that participation in “such litigation impairs its ability to
do its work.” Goldstein v. Costco Wholesale Corp., 278 F. Supp. 2d 766, 771 (E.D. Va. 2003).
Since “[o]rdinary programming costs are insufficient to establish an injury in fact,” that
organization could not establish organizational standing. Id. (citation omitted). Similarly, to the
extent that LULAC is in the business of pursuing civil rights litigation to advance the interests of
Latino voters, it cannot claim that the present litigation diverts its resources.
2.

LULAC – Richmond lacks representational standing.

In their Complaint, Plaintiffs refer to LULAC – Richmond only as an organizational
plaintiff. (Compl. ¶ 3). The Complaint does not discuss any of the requirements for establishing
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representational standing.

Plaintiffs’ Opposition, however, now asserts that LULAC –

Richmond has representational standing.

As Plaintiffs’ Opposition acknowledges, an

organization can establish representational standing to sue on behalf of its individual members
only when “(1) at least one of its members has standing to sue in his own right; (2) the
organization seeks to protect interests germane to the organization’s purpose; and (3) neither the
claim asserted nor the relief sought requires participation of individual members.” (Resp., ECF
No. 50 at 17 (quoting Friends of the Earth, 204 F.3d at 155). LULAC – Richmond does not
fulfill these necessary requirements to establish representational standing.
The very authorities cited in Plaintiffs’ Opposition show that LULAC – Richmond fails
to satisfy the first prong and therefore lacks representational standing. Plaintiffs fail to identify
“one specific member . . . who was injured by challenged conduct” of Defendants. N.C. State
Conference of NAACP v. N.C. State Bd. of Elections, 283 F. Supp. 3d 393, 401 (M.D.N.C. 2017);
see also S. Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713
F.3d 175, 184 (4th Cir. 2013) (“The Supreme Court has clarified that to show that its members
would have standing, an organization must ‘make specific allegations establishing that at least
one identified member had suffered or would suffer harm.’” (quoting Summers v. Earth Island
Inst., 555 U.S. 488, 498 (2009))). Instead, Plaintiffs merely allege harm generally to “LULAC’s
members and the Latino community LULAC represents.” (Resp., ECF No. 50 at 17). The
Complaint also does not allege that any of the named Plaintiffs are members of LULAC –
Richmond.
In Summers v. Earth Island Institute, the plaintiffs, a group of environmental
organizations, were unable to establish standing on behalf of their members in the district court
because they could not demonstrate any particularized harm suffered by an organization

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member. 555 U.S. 488, 495 (2009). The Supreme Court further held that, because the plaintiffs
were unable to “me[et] the challenge to their standing at the time of judgment,” the plaintiffs
“could not remedy the defect retroactively” by supplementing the record with additional
evidence. Id. at 495 n.*.
The Complaint also does not allege that any particular members of LULAC – Richmond
were actually deterred from exercising their voting rights as a result of the publication of either
of the two Reports. Instead, Plaintiffs rely on mere speculation that in the future, “[t]he Latino
community, including members of LULAC, will be discouraged from participating in the
electoral process as a direct result of Defendants’ conduct.” (Compl. ¶ 51). These non-specific,
attenuated, and speculative allegations of harm cannot support standing for LULAC –
Richmond’s members as individuals. If LULAC – Richmond’s individual members would not
have standing, then LULAC – Richmond cannot establish representational standing to sue on
their behalf. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181
(2000).
Even if LULAC – Richmond could satisfy the first prong of the Laidlaw test, the factual
allegations of the Complaint do not support Plaintiffs’ argument that “the interests raised by
LULAC’s claims are plainly germane to the organization’s purpose, which includes advancing
the political influence and civil rights of the Latino population of the city of Richmond, Virginia
and its surrounding areas.” (Resp., ECF No. 50 at 17). Plaintiffs state that Defendants asserted
in the Reports that “registering to vote and/or voting constitutes an unlawful ‘alien invasion’ that
should be prosecuted.” (Id.) But Plaintiffs have not satisfactorily alleged any facts that would
support their claim that Defendants targeted Latinos. The Reports make no mention of Latinos
generally. Nor does the Complaint identify any individual members of LULAC – Richmond

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who were named in the government records attached to either published Report. Because the
Complaint does not plead claims that are “plainly germane” to the organization’s purpose,
LULAC cannot establish representational standing under the second prong of Laidlaw.
B.

Even if the Voting Rights Act Authorized Claims Against Non-Government
Parties, Plaintiffs’ Allegations Are Insufficient to Establish Any Violation.
1.

Section 11(b) of the Voting Rights Act does not reach conduct by
private parties who merely advocate for maintaining voter integrity.

While claiming that their position is supported by “[t]he plain language” of Section 11(b)
of the Voting Rights Act, Plaintiffs’ Opposition does not identify even a single successful 11(b)
voter intimidation claim against a non-government actor.1 That is because courts have never
upheld congressional authority to ban the voter intimidation alleged in this case based on the
Elections Clause of the Constitution.
Plaintiffs also lean heavily on the legislative history for Section 11(b) for the proposition
that Section 11(b) can reach intimidation by private individuals in purely local elections “from
article I, section 4, and the implied power of Congress to protect federal elections against corrupt
influences. (Resp., ECF No. 50 at 24 (quoting 1965 U.S.C.C.A.N. 2437, 2462).) But the
legislative history is not as clear as Plaintiffs suggest. The legislative history shows that a group
of Republican Congressmen in the House Judiciary Committee disputed the constitutional basis
for extending Section 11(b) to private citizens not acting under color of law: “[Section 11(b)]
attempts to reach the question of coercion of any voter by any private citizen not acting under
color of law in, apparently, any election. We believe that such a proposition by the Congress,
1

Plaintiffs attempt to claim that Mr. Adams “knows that Section 11(b) applies to private actors,” because, in his
capacity as a Department of Justice attorney, he previously helped bring a voter intimidation suit on behalf of the
United States against the New Black Panther Party (based on allegations of actual threatened violence: party
members brandished weapons at voters and poll watchers at the entrance to a polling place in Philadelphia). (Resp.,
ECF No. 50 at 17). This is ridiculous. Plaintiffs cannot in good faith argue that work on a government lawsuit by a
government attorney permanently imputes the government’s position to that individual. If this were true, attorneys
who left the government for private practice would be constrained from advocating legal positions contrary to those
of the government.

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having no basis in either the 14th or 15th amendments, is without constitutional authority.” 1965
U.S.C.C.A.N. at 2479 (citing James v. Bowman, 190 U.S. 127 (1903); United States v. Reese, 92
U.S. 214 (1875)).
Nor do the cases cited in Plaintiffs’ Opposition support their argument for an
unprecedented application of Section 11(b) to private conduct. Plaintiffs cite U.S. v. Simms for
the proposition that Section 11(b) “constitutes ‘necessary and proper legislation to . . . [the]
power to regulate federal elections under Article I, Section 4 of the Constitution.” (Resp., ECF
No. 50 at 24–25 (quoting U.S. v. Simms, 508 F. Supp. 1179, 1186–87 (W.D. La. 1979)). Simms
is easily distinguishable, however, and does not apply to the issues raised by Defendants’ Rule
12(b)(6) Motion to Dismiss. Simms does not deal with voter intimidation at all. Instead, it
addresses making payments for voter registration in an attempt to influence a federal election
through “vote-buying.” The claims in Simms were based on what is now § 10307(c)), not
§ 10307(b) as in the present case. Simms has also never been cited in support of a successful
voter intimidation case.
Equally misplaced is Plaintiffs’ attempt to rely on Smiley v. Holm, 285 U.S. 355, 366
(1932), which they cite for the proposition that the Elections Clause permits Congress to
“provide a complete code for congressional elections.” (Resp., ECF No. 50 at 25). In fact, the
Supreme Court merely listed voting-related subjects that it believed Congress could regulate
under Article I, § 4. See 285 U.S. at 366 (listing “notices, registration, supervision of voting,
protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of
inspectors and canvassers, and making and publication of election returns”).

But because

Smiley’s holding was limited to the topic of congressional redistricting, this statement regarding

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Congress’s ability to regulate elections in other ways is mere dicta.

It certainly does not

establish that Congress did so under Section 11(b).
Finally, Plaintiffs cite United States v. Carmichael, 685 F.2d 903, 908–09 (4th Cir. 1982)
for the proposition that “Congress may regulate any activity that even potentially affects a
federal election.” (Resp., ECF No. 50 at 25). Carmichael says no such thing. Like Simms,
Carmichael was a vote-buying case. It involved a state senator who paid campaign employees
for absentee ballots and encouraged payments to voters in connection with a mixed state/federal
election. The case focused on what is now § 10307(c) and did not involve any claims of voter
intimidation under § 10307(b). The portion of the opinion cited in Plaintiffs’ Opposition merely
says that “[r]ather, a violation of § 1973i(c) [now § 10307(c)] is established when the evidence
shows that a defendant bought or offered to buy a vote and that such activity ‘exposes the federal
aspects of the election to the possibility of corruption, whether or not the actual corruption takes
place and whether or not the persons participating in such activity had a specific intent to expose
the federal election to such corruption or possibility of corruption.’” The Fourth Circuit’s
decision in Carmichael does not address violation of § 10307(b)—the only issue relevant to
Defendants’ pending motion. The conduct actionable under § 10307(c) is simply not the same
that is actionable under § 10307(b), a/k/a Section 11(b). Plaintiffs’ Opposition therefore cites no
precedent for the application of Section 11(b) to conduct by purely private actors.
2.

Publication of the First and Second Reports is not actionable as
“voter intimidation” under Section 11(b) of the Voting Rights Act.

According to Plaintiffs’ Opposition, the Complaint sufficiently alleges actions of the
Defendants that rise to the level of intimidation, threats, and coercion contemplated by Section
11(b). (Resp., ECF No. 50 at 26–29). But the only conduct described in the Complaint is
“labeling the individuals named in the reports as non-citizens and therefore felons with reckless

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disregard for the truth of those allegations.”2 (Compl. ¶¶ 31, 45). See also id. ¶¶ 44, 49. In
essence, Plaintiffs claim that the publication of the Reports—which linked to public records
containing thousands of names—caused the litany of fears described in the Complaint, and that
determining whether this action constitutes intimidation is a “fact-intensive question.” (Resp.,
ECF No. 50 at 27).
Before putting Defendants to the expense of resolving this “fact-intensive question,”
however, Plaintiffs must first allege facts that “state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations and citations omitted). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”

Id.

“The

plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id.
Twombly requires dismissal of Plaintiffs’ claims unless they nudge their “claims across
the line from conceivable to plausible.” 550 U.S. at 570. Here, Plaintiffs have failed to do so for
two reasons. First, the fears alleged in the Complaint, even if true, are greatly out of proportion
with and cannot have resulted plausibly from the publication of the Reports. Second, Plaintiffs
do not and cannot attribute to Defendants the allegations of “threatening statements” made in the
comments sections of “media outlets” that published articles regarding the Reports. In other
words, the allegations do not contain “factual content that allows the court to draw the reasonable
inference that the defendant[s are] liable for the misconduct alleged.” See Iqbal, 556 U.S. at 678.
Unable to find any applicable authority for their position, Plaintiffs’ Opposition instead
cites examples of intimidation based on direct mailings to voters. (Resp., ECF No. 50 at 27). In
United States v. Tan Duc Nguyen, a Republican candidate sent letters to “individuals identified
2

Of course, Defendants contest that they actually “label[ed]” any individual in the Reports. See infra pages 17-18.

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as targets” because of Latino surnames and Democratic or no-party affiliations on their voter
registrations. 673 F.3d 1259, 1265 (9th Cir. 2012). Notably, the court in Nguyen did not hold
that the letter constituted intimidation in violation of the state voter intimidation statute. Instead,
the court held that “there was a fair probability that the mailing constituted a violation.” Id. at
1264. In United States v. North Carolina Republican Party, the complaint alleged that the
defendants mailed postcards to households specifically targeted because at least one registered
Democrat lived in the home and because 94 percent of the voters in the specifically targeted
precincts were black voters. (Case No. 91-161-CIV-5-F (E.D.N.C.), ECF No. 50-2 at 7–8). In
the consent decree by which that case was resolved, the defendants specifically denied that their
actions constituted intimidation.
Here, the individual Plaintiffs’ names appeared in a government document attached as an
exhibit to a Report—they were neither targeted nor specifically mentioned. Plaintiffs do not and
cannot allege that Defendants mailed a copy of the Report directly to the individual Plaintiffs.
The facts alleged therefore are distinguishable from those at issue in the cases cited by Plaintiffs
and simply do not rise to the level of intimidation, threats, or coercion within the meaning of
Section 11(b).
To the extent that prior decisions of the Eastern District of Virginia address the scope of
Section 11(b), they are not helpful to Plaintiffs’ cause. To state a claim under Section 11(b), “a
plaintiff must show both an act of intimidation or attempt to intimidate, and that the act was done
with the specific intent to intimidate or attempt to intimidate.” Parson v. Alcorn, 157 F. Supp. 3d
479, 498 (E.D. Va. 2016).

Although Section 11(b) does not contain an express intent

requirement, the words “intimidate, threaten, or coerce” inherently contain a component of
intent. Damon v. Hukowicz, 964 F. Supp. 2d 120, 149 (D. Mass. 2013) (“A ‘threat’ means ‘the

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intentional exertion of pressure to make another fearful or apprehensive of injury or
harm’. . . . ‘Intimidation’ means putting a person in fear for the purpose of compelling or
deterring his or her conduct’. . . . ‘Coercion’ means application of physical or moral force to
another to constrain him to do against his will something he would not otherwise do.’”) (internal
citations omitted).
C.

Plaintiffs’ Inflammatory Claim of a “Ku Klux Klan Act” Conspiracy Is
Not Supported By Any Allegations of Violations of 42 U.S.C. § 1985(3).
1.

Plaintiffs’ Opposition cites no factual allegations sufficient to establish
their claim of an unlawful conspiracy in violation of 42 U.S.C. § 1985(3).

As Plaintiffs’ Opposition concedes, their claim of a conspiracy in violation of the
“support or advocacy clause” of 42 U.S.C. § 1985(3) requires allegations that Defendants
conspired either to (1) “prevent by force, intimidation, or threat, any citizen who is lawfully
entitled to vote, from giving his support or advocacy” in a federal election, or to (2) “injure any
citizen in person or property on account of such support or advocacy.” (Resp., ECF No. 50 at
18.)

Plaintiffs must also plead an act in furtherance of the conspiracy by one or more

conspirators whereby Plaintiffs were injured in their person or property. (Id.).
Here, the Complaint does not properly allege these essential elements. According to
Plaintiffs’ Opposition, the Complaint alleges that “Defendant Adams and PILF conspired with
each other and with VVA (a conspiracy of two or more persons)” to release and publicize the
Reports. (Id.). These allegations are insufficient to establish a conspiracy to prevent voting
involving threats, force, or intimidation. Plaintiffs’ Opposition asserts that the sole basis for
Defendants’ Rule 12(b)(6) challenge to their § 1985 conspiracy claim is the Complaint’s failure
to “include the times and places when conspiratorial meetings took place.” (Id.) This is
incorrect. As the Motion to Dismiss explains, “a complaint must plead the circumstances of a
§ 1985(3) conspiracy with particularity.” (Mot. at 20). These circumstances can “include the
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times and places when conspiratorial meetings took place,” as well as “discussion of meetings,
conversations or correspondence” indicating agreement based on racial animus. (Mot. at 20)
(citing Snow v. Cty. of Henrico, No. 3:90CV00509, 1990 WL 270198, at *2–3 (E.D. Va. Dec.
17, 1990), aff’d, 927 F.2d 596 (4th Cir. 1991)). Plaintiffs’ problem is that they failed to plead
any details related to meetings or agreements that would establish the alleged conspiracy.
Plaintiffs also claim that “all that must be alleged is ‘an agreement or meeting of the mind
by defendants’” and that the agreement between Defendants to co-publish the Reports satisfies
this condition. (Resp., ECF No. 50 at 19) (citing Polidi v. Bannon, 226 F. Supp. 3d 615, 623
(E.D. Va. 2016))). What Polidi actually says, however, is that “a plaintiff asserting a § 1985
conspiracy must allege ‘an agreement or a meeting of the mind by defendants to violate the
claimant’s constitutional rights.’” Polidi, 226 F. Supp. 3d at 623 (internal citation and quotation
marks omitted). This omission is critical. Defendants’ mere agreement to publish the Reports
simply does not satisfy the requirement. Plaintiffs must instead allege an agreement between
Defendants for the purpose of violating Plaintiffs’ constitutional rights. This intent requirement
is key. The alleged conspiracy cannot be merely to publish a report. Instead, it must be to
“(1) “prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from
giving his support or advocacy” in a federal election, or to (2) “injure any citizen in person or
property on account of such support or advocacy.”” (Resp., ECF No. 50 at 18). Plaintiffs have
failed to allege any facts in support of such a conspiracy.
2.

Plaintiffs’ Opposition wrongly ignore the requirement for state action
to establish an unlawful conspiracy under the “Ku Klux Klan Act.”

Plaintiffs attempt to circumvent the requirements for both state action and class-based
animus by relying on the statutory language of § 1985(3).

Plaintiffs claim that these

“requirements do not exist in the statute for claims of a conspiracy in violation of the ‘support or

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advocacy clause.’” (Resp., ECF No. 50 at 19). Indeed, these requirements are not found in the
“support or advocacy clause” or any other clause in § 1985(3). It is incorrect, however, that
Defendants are attempting to add “extra-textual elements.” (Id.). It is case law from the Fourth
Circuit that imposes these requirements. Thomas v. The Salvation Army Southern Territory, 841
F.3d 632, 637 (4th Cir. 2016); Simmons v. Poe, 47 F.3d 1370, 1376 (4th Cir. 1995).
Tellingly, Plaintiffs’ Opposition cites no controlling authority in support of their claim
that the “support or advocacy clause” of § 1985(3) should apply to wholly private conspiracies.
(Resp., ECF No. 50 at 20–21). The best support that Plaintiffs can provide for this assertion is an
unpublished district court decision from outside this circuit that has never been cited by any
other court. Ariz. Democratic Party v. Ariz. Republican Party, No. CV-16-03752-PHX-JJT,
2016 WL 8669978 (D. Ariz. Nov. 4, 2016). Arizona Democratic Party is a voter intimidation
case involving § 1985(3) claims as well as Section 11(b) Voting Rights Act claims. While that
district court found that the plain language of the statutes did not exclude actions against nonstate actors, it ultimately denied the plaintiff’s request for preliminary injunction. Id. at 5
n*4,*13.
The Eastern District of Virginia has adopted a framework for determining when certain
private conspiracies are actionable under Section 1985(3), based on Supreme Court precedent:
In order to state a claim for a private conspiracy in violation of the first
clause of 42 U.S.C. § 1985(3), a plaintiff must allege, inter alia, “(1) that
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 official, encroachment.”
Deressa v. Gobena, No. 1:05CV1334(JCC), 2006 WL 335629, at *5 (E.D. Va. Feb. 13, 2006)
(quoting Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 267–68 (1993)). This
authority clarifies that only certain specified private conspiracies—not including “support or

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advocacy clause” claims—are actionable under § 1985(3). Plaintiffs identified no controlling
case law that would allow them to pursue their § 1985(3) claim against Defendants.
3.

Plaintiffs’ Section 1985 conspiracy claim requires a showing of racial animus.

The Fourth Circuit has recently explained that to bring a claim under § 1985, a plaintiff
must show “(1) a conspiracy of two or more persons, (2) who are motivated by a specific classbased, invidiously discriminatory animus to (3) deprive the plaintiff of the equal enjoyment of
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.”
Thomas, 841 F.3d at 637; Simmons, 47 F.3d at 1376.

Plaintiffs do not even attempt to

distinguish the broad language of Thomas applying a class-based animus requirement to § 1985
generally. Instead, Plaintiffs claim that the “support or advocacy clause” was passed exclusively
under Congress’s authority under Article I, Section IV of the Constitution to argue that there are
no federalism concerns and the class-based animus requirement is not necessary. (Resp., ECF
No. 50 at 2). Notably, however, Plaintiffs cite no Fourth Circuit authority in support of this
argument.
Despite Plaintiffs’ protestations to the contrary, the language of Fourth Circuit decisions
does not support Plaintiffs’ claim that the “support or advocacy clause” does not require a
showing of racial or class-based animus. Instead, the Fourth Circuit has applied the class-based
animus requirement to § 1985 without making any distinction for the “support or advocacy
clause.” It is true that these Fourth Circuit cases did not decide “support or advocacy clause”
claims. Most of the Fourth Circuit cases are based on the first two clauses of § 1985(3).
However, the Fourth Circuit has not yet issued any decision narrowing the scope of its
requirement that § 1985 conspiracies include a class-based animus element.

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Plaintiffs allege that “Defendants’ approach contradicts precedent rejecting extra-textual,
one-size-fits-all approaches to Section 1985,” citing Kush v. Rutledge, 460 U.S. 719, 724 (1983).
(Resp., ECF No. 50 at 20). But Kush does not support Plaintiffs’ proposition. The cited text
merely explains that § 1985 “outlaw[s] five broad classes of conspiratorial activity,” namely:
“(a) the performance of official duties by federal officers; (b) the administration of justice in
federal courts; (c) the administration of justice in state courts; (d) the private enjoyment of ‘equal
protection of the laws’ and ‘equal privileges and immunities under the laws”; and (e) the right to
support candidates in federal elections.” Kush, 460 U.S. at 724. Plaintiffs cite no controlling
authority to preclude the class-based animus requirement because there is none.
Plaintiffs have not even attempted to allege that Defendants’ conduct was motivated by
the “specific, class-based, invidiously discriminatory animus” that the Fourth Circuit found
necessary in Thomas, 841 F.3d at 637. Nor is there any basis in fact or law to believe that
Plaintiffs could indeed demonstrate such class-based animus. Accordingly, their § 1985 claim
should be dismissed for failure to state a claim. See Polidi, 226 F. Supp. 3d at 622.
D.

The Allegedly Defamatory Reports Do Not Mention the Individual Plaintiffs
By Name and Are Otherwise Not Actionable As a Matter of Virginia Law.
1.

The Complaint does not allege that Defendants published any statements,
defamatory or otherwise, about any of the individual named Plaintiffs.

Plaintiffs cannot dispute that the Reports did not specifically identify any individual
Plaintiff and therefore cannot be construed as being “about the plaintiff.” See Moore v. PYA
Monarch, LLC, 238 F. Supp. 2d 724, 728 (E.D. Va. 2002). In an effort to circumvent this fatal
deficiency in their defamation claim, Plaintiffs assert that Defendants’ argument “is exceedingly
formalistic, defies common sense, and would create a gaping loophole for defamation . . . .”
(Resp., ECF No. 50 at 33). And yet, it is Plaintiffs’ interpretation of defamation law that
stretches the bounds of reason.
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Every single defamation case cited by Plaintiffs addressed statements directed at an
individual by name. See Schnupp v. Smith, 249 Va. 353, 357–58, 457 S.E.2d 42, 44 (1995)
(affirming jury verdict finding defamatory a statement insinuating that the plaintiff by name was
somehow involved in the sale or purchase of drugs); Carwile v. Richmond Newspapers, 82
S.E.2d 588, 589–90 (Va. 1954) (statement naming plaintiff and then insinuating that a purported
violation of attorneys’ ethical code could lead to disbarment raised a “reasonable implication”
that plaintiff had engaged in unethical or unprofessional conduct); Hyland v. Raytheon Tech.
Servs. Co., 277 Va. 40, 43-44, 670 S.E.2d 746, 749 (2009) (discussing whether statements
directly naming the plaintiff were statements of fact or opinion); Hatfill v. New York Times Co.,
416 F.3d 320, 324–25 (4th Cir. 2005) (plaintiff adequately pleaded a defamation cause of action
based on statements that specifically identified the plaintiff as a main suspect in anthrax mailings
which resulted in deaths).
While the case law is clear that an imputation or inference can constitute defamation, the
case law is equally clear that there must be a specific mention of or identification of the allegedly
defamed individual. Such a specific mention is entirely lacking from the Reports at issue here.
And while “Defendants’ spin on the Reports . . . is not a consideration at the motion to dismiss
stage” (Resp., ECF No. 50 at 35), Plaintiffs’ “spin on the Reports” most certainly should be
considered at this stage. Specifically, where the plain content of the Reports conflicts with or
contradicts Plaintiffs’ allegations, this Court is not required to accept the truth of Plaintiffs’
allegations. See S. Walk at Broadlands Homeowner's Ass’n, Inc. v. OpenBand at Broadlands,
LLC, 713 F.3d 175, 182 (4th Cir. 2013) (“When addressing the appropriateness of dismissal . . .,
we consider exhibits attached to the complaint in addition to the complaint itself. In the event of

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conflict between the bare allegations of the complaint and any exhibit attached to the complaint,
the exhibit prevails.”) (internal citations, quotation marks, and alterations omitted).
2.

The Complaint does not allege sufficient facts to establish that
Defendants published the Reports with the requisite intent.

Plaintiffs’ intent allegations remain deficient, cursory, and formulaic, and this Court is
not required to accept them as true. See Iqbal, 556 U.S. at 678 (“[A]llegations … [that] are
conclusory [are] ‘not entitled to be assumed true.’”). Plaintiffs make only one concrete factual
allegation to support those cursory and formulaic assertions, and even that allegation does not
support their assertion. (Compl. ¶ 33). To bolster their intent allegations, Plaintiffs assert that
the “Complaint likewise alleges that media reports highlighted the falsity of Defendants [sic]
accusations.”

(Resp., ECF No. 50 at 37).

In support of this assertion, Plaintiffs cite the

following allegations of the Complaint: “On information and belief, critical media reports made
Defendants further aware of the methodological shortcomings in [the First Report] after its
release. Virginia election officials also informed Defendants of the methodological deficiencies
of [the First Report] before [the Second Report] was published.” (Compl. ¶ 34). But certainly a
wide gap exists between alleged falsity of information and alleged methodological deficiencies
of an investigation. The Complaint does not allege what Plaintiffs now assert that it alleges.
3.

Plaintiffs’ defamation claim should be dismissed pursuant to
Virginia’s anti-SLAPP statute, Virginia Code § 8.01-223.2.

Defendants are fully entitled to immunity under Virginia’s anti-SLAPP statute. In fact,
the Reports constitute precisely the kind of speech the statute was intended to insulate. Plaintiffs
rely on faulty logic in a circuit court opinion letter to assert that the protections of the antiSLAPP statute were not available to Defendants at the time the Reports were published. (Resp.,
ECF No. 50 at 37) (citing Will Nesbitt Realty, LLC v. Jones, CL-2016-14234, 2018 Va. Cir.
LEXIS 66, at *41–44 (Va. Cir. Ct. Apr. 30, 2018).) That opinion letter is neither precedential
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nor persuasive. There, the Circuit Court of the Nineteenth Judicial Circuit of Virginia found that
the version of the anti-SLAPP statute in effect on the date the allegedly defamatory statement
was published—in other words, on the date the defamation cause of action accrued—was the
applicable version.

The Nesbitt court reasoned that an affirmative defense “accrues”

simultaneously with the cause of action. This reasoning completely ignores the fact that an
affirmative defense applies only to the lawsuit in which a cause of action is asserted. For
example, by its very nature, a statute of limitations affirmative defense does not exist at the time
a cause of action accrues. Instead, it is the filing of a lawsuit after the statute of limitations has
elapsed that gives rise to the affirmative defense. The anti-SLAPP statute is triggered only by
the filing of the defamation lawsuit. In this case, that occurred on April 12, 2018, long after the
Virginia anti-SLAPP statute was expanded to cover defamation lawsuits.
The anti-SLAPP statute directly applies to this case because the Reports at issue concern
quintessentially protected speech. See Gazarkiewicz v. Town of Kingsford Heights, Indiana, 359
F.3d 933, 941 (7th Cir. 2004) (“[M]ost people would likely have an interest in the possible
incompetence of public officials.

Speech that seeks to expose improper operations of the

government or questions the integrity of governmental officials clearly concerns vital public
interests. . . . Furthermore, the flyer relates those inefficiencies to a matter at the core of our
constitutional system: democratic elections.”) (internal citations and quotation marks omitted).
Although Plaintiffs attempt to draw attention away from what the Reports actually highlight—
the integrity of elections—their attempt fails because Plaintiffs attach the Reports to the
Complaint, and the plain text of the Reports controls this Court’s analysis.
The very purpose of the anti-SLAPP statute upon which Defendants have based their
Rule 12(b)(6) Motion to Dismiss is the First Amendment. See Va. Code § 9.01-223.2(A)

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(protecting a person from civil liability for a defamation claim based on statements “regarding
matters of public concern that would be protected under the First Amendment to the United
States Constitution”). In support of their Rule 12(b)(6) Motion to Dismiss, Defendants argued
that they “have a First Amendment right to engage in speech” related to the integrity of elections
in the United States, as “an issue of great public concern.” (Mot. at 26). Indeed, “[o]ne of the
fundamental rights secured by the First Amendment is that of free uncensored expression,”
particularly in the context of political speech like the Reports. (Id. at 27). In its amicus brief in
support of Defendants, the Landmark Legal Foundation emphasized these First Amendment
Concerns. According to Plaintiffs’ Opposition, however, “Landmark argues that Defendants
actions were protected by the First Amendment, an argument not made by Defendants.” (Resp.,
ECF No. 50 at 13 n.1). This is demonstrably incorrect.
III.

CONCLUSION

Plaintiffs’ Opposition cites no specific factual allegations and cites no authority that
would allow their Complaint to survive Defendants’ motion to dismiss for lack of standing and
for failure to state any claim upon which relief could be granted. Plaintiffs’ Complaint therefore
should be dismissed in its entirety.

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Dated: June 18, 2018

Respectfully submitted,

PUBLIC INTEREST LEGAL FOUNDATION
and J. CHRISTIAN ADAMS
By /s/ Michael J. Lockerby
Counsel
Michael J. Lockerby (VA Bar No. 24003)
Eli L. Evans (pro hac vice motion forthcoming)
FOLEY & LARDNER LLP
Washington Harbour
3000 K Street, N.W., Suite 600
Washington, D.C. 20007-5109
Telephone: 202-945-6079
Facsimile: 202-672-5399
Email: mlockerby@foley.com
Email: eevans@foley.com

William E. Davis (admitted pro hac vice)
Ana Romes (admitted pro hac vice)
FOLEY & LARDNER LLP
One Biscayne Tower
2 South Biscayne Boulevard, Suite 1900
Miami, Florida 33131
Telephone: 305-482-8404
Facsimile: 305-482-8600
Email: wdavis@foley.com
Email: aromes@foley.com
Counsel for Defendants

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CERTIFICATE OF SERVICE
I hereby certify that on the 18th day of June, 2018, I electronically filed the foregoing
REPLY MEMORANDUM IN SUPPORT OF DEFENDANTS’ RULE 12(b)(6) MOTION
TO DISMISS with the Clerk of Court using the CM/ECF system, which will then send a
notification of such filing (NEF) to all counsel of record, including:
Anisa A. Somani, Esq.
Nicole M. Cleminshaw, Esq.
Geoffrey M. Wyatt, Esq.
Sean M. Tepe, Esq., Esq.
Lauren A. Eisenberg, Esq.
Samuel Levo, Esq.
Andrew Hanson, Esq.
SKADDEN ARPS SLATE MEAGHER & FLOM
1440 New York Avenue, N.W.
Washington, D.C. 20005
Allison Riggs, Esq.
Jacklyn Maffetore, Esq.
SOUTHERN COALITION FOR SOCIAL JUSTICE
1415 West Highway 54, Suite 101
Durham, North Carolina 27707
Cameron Kistler, Esq.
PROTECT DEMOCRACY PROJECT
2020 Pennsylvania Avenue, N.W. # 163
Washington, D.C. 20006
Larry Schwartztol, Esq.
PROTECT DEMOCRACY PROJECT
10 Ware Street
Cambridge, Massachusetts 02138
Andrew G. Celli, Jr., Esq.
Alanna Kaufman, Esq.
EMERY CELLI BRINCKERHOFF & ABADY LLP
600 Fifth Avenue at Rockefeller Center
10th Floor
New York, New York 10020

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/s/ Michael J. Lockerby
Michael J. Lockerby (VA Bar No. 24003)
FOLEY & LARDNER LLP
Washington Harbour
3000 K Street, N.W., Suite 600
Washington, D.C. 20007-5109
Telephone: 202-945-6079
Facsimile: 202-672-5399
Email: mlockerby@foley.com
Counsel for Defendants

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