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

Civil Action No. 1:18-cv-00423-LO-IDD

v.
PUBLIC INTEREST LEGAL
FOUNDATION, an Indiana Corporation,
and J. CHRISTIAN ADAMS,
Defendants.
_______________________________________
BRIEF OF AMICI CURIAE CAMPAIGN LEGAL CENTER, PROFESSOR DANIEL R.
ORTIZ, AND PROFESSOR THEODORE M. SHAW IN OPPOSITION TO
DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ COMPLAINT
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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TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii
STATEMENT OF INTEREST ........................................................................................................1
SUMMARY OF ARGUMENT .......................................................................................................3
ARGUMENT ...................................................................................................................................4
I.
THE PLAIN TEXT OF § 11(B) AND A PROPER UNDERSTANDING OF ITS
CONSTITUTIONAL BASIS DEMONSTRATE THAT IT IS NOT LIMITED TO
CLAIMS SOLELY AGAINST STATE ACTORS AND DOES NOT REQUIRE A
SHOWING OF RACIAL ANIMUS ..............................................................................4
A. The Constitutional Authority for § 11(B) Is the Elections Clause, not the Fifteenth
Amendment ..............................................................................................................5
B. Because Congress Passed § 11(B) Pursuant to Its Authority Under the Elections
Clause, Nothing Limits It from Reaching Voter Intimidation by NonGovernmental Actors. ..............................................................................................7
C. Section 11(B) Requires No Showing of Specific Intent, Nor Does It Require
Plaintiffs to Plead Racial Animus ............................................................................9
II.
A CLAIM UNDER THE “SUPPORT OR ADVOCACY” CLAUSE OF § 1985(3)
DOES NOT REQUIRE EITHER PROOF OF A VIOLATION OF AN
INDEPENDENT CONSTITUTIONAL RIGHT OR A SHOWING OF CLASS
BASED ANIMUS ........................................................................................................12
A. The Text of § 1985(3) Shows that There Are Five Distinct Clauses, Four of
Which Identify Legally Actionable Claims ...........................................................12
B. Allegations of a Violation of the “Equal Protection” Clauses of § 1985(3) Would
Require State Action, But the Plaintiffs Make Claims Based on the “Support or
Advocacy” Clauses, and Therefore Validly State Allegations Against Private
Actors .....................................................................................................................14
III.
DEFENDANTS’ ALLEGED CONDUCT RISES TO THE LEVEL OF
“INTIMIDATION” AS THAT TERM IS COMMONLY UNDERSTOOD, AND AS
THE TERM WAS USED BY CONGRESS WHEN ENACTING BOTH § 11(B)
AND § 1985(3) ............................................................................................................17
A. Defendants’ Alleged Conduct Falls Within the Commonly Understood Meaning
of the Term “Intimidation” Under Both § 1985(3) And § 11(B) ...........................17
B. Defendants’ Alleged Conduct Is a Modern Form of the Acts that § 11(B) Sought
to Prohibit...............................................................................................................21
C. Congress’ Intent in Passing § 1985(3) Was to Stop Intimidation and Injury
Serious Enough to Deter Political Engagement .....................................................24
CONCLUSION ..............................................................................................................................28

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TABLE OF AUTHORITIES
Cases
Arizona v. Inter Tribal Council of Ariz., Inc.,
570 U.S. 1 (2013) .................................................................................................................7
Bray v. Alexandria Women’s Health Clinic,
506 U.S. 263 (1993) ...........................................................................................................16
Ex parte Yarbrough,
110 U.S. 651 (1884) .............................................................................................................6
Great Am. Fed. Sav. & Loan Ass'n v. Novotny,
442 U.S. 366 (1979) ...........................................................................................................15
Griffin v. Breckenridge,
403 U.S. 88 (1971) .......................................................................................................15, 16
Halprin v. Prairie Single Family Homes of Dearborn Park Ass’n,
388 F.3d 327 (7th Cir. 2004) .............................................................................................19
King v. Cook,
298 F. Supp. 584 (N.D. Miss. 1969) ............................................................................22, 23
Kush v. Rutledge,
460 U.S. 719 (1983) .....................................................................................................13, 16
Leocal v. Ashcroft,
543 U.S. 1 (2004) ...............................................................................................................17
Limtiaco v. Camacho,
549 U.S. 483 (2007) .............................................................................................................5
Nipper v. Smith,
39 F.3d 1494 (1994) .............................................................................................................8
Olagues v. Russoniello,
797 F.2d 1511 (9th Cir. 1986) ...........................................................................................11
Parson v. Alcorn,
157 F. Supp. 3d 479 (E.D. Va. 2016) ................................................................................11
Paynes v. Lee,
377 F.2d 61 (5th Cir. 1967) ...............................................................................................16
People Helpers, Inc. v. City of Richmond,
789 F. Supp. 725 (E.D. Va. 1992) .....................................................................................19
Pincham v. Illinois Judicial Inquiry Board,
681 F. Supp. 1309 (N.D. Ill. 1988) ....................................................................................11
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) .............................18
Smiley v. Holm,
285 U.S. 355 (1932) .........................................................................................................6, 7
United Bhd. of Carpenters, Local 610 v. Scott,
463 U.S. 825 (1983) .....................................................................................................15, 16
United States v. Bruce,
353 F.2d 474 (5th Cir. 1965) .............................................................................................19
United States v. Beaty,
288 F.2d 653 (6th Cir. 1961) .............................................................................................19
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United States v. Deal
6 Race Rel. L. Rep. 474 (W.D. La. 1961)..........................................................................19
United States v. Harvey,
250 F. Supp. 219 (E.D. La. 1966) ........................................................................................8
United States v. McLeod,
385 F.2d 734 (5th Cir. 1967) .............................................................................................11
United States v. Mississippi,
380 U.S. 128 (1965) ...........................................................................................................23
United States v. Nguyen,
673 F.3d 1259 (9th Cir. 2012) ...........................................................................................20
United States v. White,
670 F.3d 498 (4th Cir. 2012) .............................................................................................24
United States v. White,
698 F.3d 1005 (7th Cir. 2012) ...........................................................................................24
United States v. Williams,
341 U.S. 70 (1951) ........................................................................................................... 7-8
U.S. ex rel. Katzenbach v. Original Knights of KKK,
250 F. Supp. 330 (E.D. La. 1965) ......................................................................................21
Constitutional Law
U.S. Const. art. I, § 4........................................................................................................................6
U.S. Const. amend. XIII, § 1..........................................................................................................15
U.S. Const. amends. XIII, XIV, XV ..............................................................................................25
Statutes
42 U.S.C. § 1985(3) ............................................................................................................... passim
52 U.S.C. § 10101(b) ............................................................................................................. passim
52 U.S.C. § 10307 .................................................................................................................. passim
Legislative History
Civil Rights: Hearings Before the S. Subcomm. on Constitutional Rights of the Committee
on the Judiciary, 85 Cong. (1957) .................................................................................................21
Cong. Globe, 42d Cong., 1st Sess. (1871) ...............................................................................13, 26
H.R. Rep. No. 89-439 (1965) .......................................................................................................5, 7
The New Black Panther Party Hearing (2): Hearing Before the U.S. Comm’n on Civil Rights,
111th Cong. (2010) ..........................................................................................................................8
Voting Rights Act of 1965: Hearing Before the H. Judiciary Comm., 111th Cong. (2010) .........10
Voting Rights: Hearings Before the S. Subcomm. on the Judiciary, 89 Cong. (1965) ..................21
Other Authorities
Ben Cady & Tom Glazer, Voters Strike Back: Litigating Against Modern Voter Intimidation,
39 N.Y.U. Rev. L. & Soc. Change 173 (2015) ...................................................... 10-11, 13, 18, 19
Craig C. Donsanto & Nancy L. Simmons, Public Integrity Section, U.S. Dep’t of Justice,
Federal Prosecution of Election Offenses (7th ed. 2007) ..............................................................20
Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877 (Henry Steele
Commager & Richard B. Morris eds. 1988) ............................................................................25, 26

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Gilda R. Daniels, Voter Deception, 43 Ind. L. Rev. 343 (2010)....................................................10
Guide to Protecting the Confidentiality of Personally Identifiable Information (PII),
Erika McCallister et al., National Institute of Standards and Technology ES-1 (2010) ...............20
Joey L. Blanch & Wesley L. Hsu, Cyber Misbehavior, 64:3 U.S. Dep’t of Just. Bull. 2
(May 2016).....................................................................................................................................23
J. Christian Adams, Adams: Inside the Black Panther Case, Wash. Times (June 25, 2010) ...... 8-9
Mark Fockele, A Construction of Section 1985(c) in Light of Its Original Purpose,
46 U. Chi. L. Rev. 402 (1979) .................................................................................................16, 26
Memorandum from Shaun Donovan, Dir., Exec. Office of the President, Office of Mgmt. &
Budget, to Heads of Exec. Dep’ts & Agencies, Preparing for and Responding to a Breach of
Personally Identifiable Information, (Jan. 3, 2017).......................................................................21
Noah Webster, An American Dictionary of the English Language (1867) ...................................17
United States Commission on Civil Rights, Voting in Mississippi (1965) ....................................22

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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 as arguing 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,
570 U.S. 529 (2013).
Amicus curiae Prof. 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 published several 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
courts and 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.
Amicus curiae Prof. Theodore M. Shaw is the Julius L. Chambers Distinguished
Professor of Law at the University of North Carolina School of Law, where he teaches courses
on the Equal Protection Clause of the Fourteenth Amendment and the civil rights statutes of the
Reconstruction Era. Prof. Shaw was the fifth Director-Counsel and President of the NAACP
Legal Defense and Educational Fund, Inc. (“LDF”), for which he worked in various capacities
over the span of twenty-six years. He has litigated education, employment, voting rights,
housing, police misconduct, capital punishment, and other civil rights cases in trial and appellate
courts, and before the United States Supreme Court. From 1982 until 1987, he litigated
education, housing, and capital punishment cases, and directed LDF’s education litigation
docket. In 1987, under the direction of LDF’s third Director-Counsel, Julius Chambers, Prof.
Shaw relocated to Los Angeles to establish LDF’s Western Regional Office. In 1990, Prof. Shaw
left LDF to join the faculty of the University of Michigan Law School. In 1993, Prof. Shaw
returned to LDF as Associate Director-Counsel, and in 2004, he became LDF’s fifth DirectorCounsel. Prof. Shaw’s legal career began as a Trial Attorney in the Honors Program of the
United States Department of Justice, Civil Rights Division in Washington, D.C., where he
worked from 1979 until 1982.
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 52 U.S.C. §
10307 (“§ 11(b)”) to conduct that intimidates, threatens, or coerces, or attempts to intimidate,
threaten, or coerce eligible voters; and the interpretation and application of 42 U.S.C. § 1985(3)

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(“§ 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.
SUMMARY OF ARGUMENT
Amici submit this brief to clarify several issues related to the interpretation and
application of § 11(b) and § 1985(3). Amici also seek to explain why, based on the plain meaning
of the terms “intimidate” and “intimidation” in § 11(b) and § 1985(3), as well as relevant case
law and legislative history, Defendants’ alleged conduct (as pled) fits squarely within the ambit
of those provisions. Thus, Plaintiffs’ Complaint states a colorable claim under these two
statutory provisions.
Amici note that, in the Memorandum in Support of Defendants’ Rule 12(b)(6) Motion to
Dismiss (“Defs. Brief”), Defendants state inaccurately that the source of constitutional authority
for § 11(b) is the Fifteenth Amendment. Two misinterpretations arise: that § 11(b) only applies
to conduct by state actors, and that § 11(b) requires a showing of specific intent or racial animus.
In fact, the authority for § 11(b) is the Elections Clause of the Constitution, which—as applicable
Supreme Court precedent makes clear—broadly authorizes Congress to enact legislation related
to voting. Therefore, § 11(b) is not limited in the manner that Defendants contend.
An additional misinterpretation in Defendants’ briefing relates to the specific provision of
§ 1985(3) that Plaintiffs allege Defendants violated. By assuming that the claim is made under
the “equal protection” clauses of § 1985(3), Defendants conclude that claims may not be brought
against private actors and that Plaintiffs must allege class-based animus. However, Plaintiffs
allege violations of the “support or advocacy” clauses of § 1985(3), which specifically prohibit
the obstruction “by force, intimidation, or threat” of any citizen from participating in the
electoral process and do not rely upon any external source of rights, such as the First

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Amendment. A proper interpretation of the Statute shows that claims may be brought against
private actors under the “support or advocacy” clauses of § 1985(3) and that Plaintiffs are not
required to allege class-based animus.
A final question before the Court relates to the meaning of the terms “intimidate” or
“intimidation” in the statutes. Amici examine the ordinary meaning of these terms, their
interpretation in federal and state civil rights cases and their interpretation by the U.S.
Department of Justice, and assess the application of these terms to Defendants’ alleged conduct.
Amici also alert the Court to historical examples of voter intimidation that occurred during the
era in which Congress enacted § 11(b) and show that Defendants’ alleged conduct falls squarely
within the category of modern forms of acts that § 11(b) sought to prohibit.
In sum, this brief seeks to explain the correct resolution of several significant interpretive
issues relating to § 11(b) and § 1985(3) and suggests that the Plaintiffs have pled sufficient facts,
such that their claims should survive the motion to dismiss brought under Rule 12(b)(6).
ARGUMENT
I.

THE PLAIN TEXT OF § 11(B) AND A PROPER UNDERSTANDING OF ITS
CONSTITUTIONAL BASIS DEMONSTRATE THAT IT IS NOT LIMITED
TO CLAIMS SOLELY AGAINST STATE ACTORS AND DOES NOT
REQUIRE A SHOWING OF RACIAL ANIMUS.
Defendants assert that § 11(b) only applies to action by state actors and that it requires

proof of racial animus. Defs. Brief at 10. These propositions are demonstrably incorrect. The
plain text of the provision, an understanding of the constitutional basis for the provision,
Supreme Court precedent, and the underlying congressional purpose make clear that § 11(b)
applies to individual conduct that intimidates, threatens, or coerces (or attempts to intimidate,
threaten, or coerce) eligible voters.

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“As always, we begin with the text of the statute.” Limtiaco v. Camacho, 549 U.S. 483,
488 (2007) (Thomas, J.). Section 11(b) provides:
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). On its face, then, the text of § 11(b) applies to all persons, “whether acting
under color of law or otherwise” — i.e., not just government actors — and it says nothing about
racial animus or intent. Defendants thus face a high bar in arguing for these additional limitations
based on the clear instructions of Congress. But our inquiry does not stop with the text. This
section of the brief lays out the constitutional authority for § 11(b) and explains how this
authority, along with the congressional record and judicial precedent, support Plaintiffs’
assertions that § 11(b) can be invoked against private actors and that Plaintiffs need not assert
racial animus.
A. The Constitutional Authority for § 11(B) Is the Elections Clause, Not the
Fifteenth Amendment.
Defendants assert that § 11(b) was passed pursuant to Congress’ authority under the
Fifteenth Amendment. Defs. Brief at 10. This is simply incorrect. While most of the Voting
Rights Act (“VRA”) was passed pursuant to the Fifteenth Amendment, which prohibits racial
restrictions on voting by government actors, the House Report for § 11(b) specifically invokes
“article I, section 4, and the implied power of Congress to protect Federal elections against
corrupt influences, neither of which requires a nexus with race.” H.R. Rep. No. 89-439, at 30
(1965), reprinted in 1965 U.S.C.C.A.N. 2462.1

1

See also “The [VRA] is designed primarily to enforce the 15 th [A]mendment . . . and is also
designed to enforce the 14th [A]mendment and article I, section 4. ” H.R. Rep. No. 89-439, at 6
(1965), reprinted in 1965 U.S.C.C.A.N. 2462.
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Article I, Section 4 of the U.S. Constitution (“the Elections Clause”) grants Congress
broad authority to regulate the time, place, and manner of elections. It states: “[t]he Times,
Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in
each State by the Legislature thereof; but the Congress may at any time by Law make or alter
such Regulations, except as to the Places of chusing [sic] Senators.” U.S. Const. art. I, § 4.
Therefore, even from a review of the text of the Elections Clause alone, we can see that any
exercise of power under it may include regulations as to the time, place, and manner of elections.
Regulating voter intimidation is squarely within the regulation of the “manner” of an election.
Supreme Court precedent confirms that the Elections Clause empowers Congress to
combat voter intimidation irrespective of whether it has a racial element. More than 100 years
ago, the Supreme Court explicitly relied on the Elections Clause in concluding that the power to
regulate elections includes the power to enforce voter intimidation laws. See Ex parte
Yarbrough, 110 U.S. 651, 662 (1884) (“[W]hen, in the pursuance of a new demand for action,
[Congress], as it did in the cases just enumerated, finds it necessary to make additional laws for
the free, the pure, and the safe exercise of this right of voting, they stand upon the same ground,
and are to be upheld for the same reasons.”).
Fifty years later, the Supreme Court again recognized that Congress’ power to regulate
elections under the Elections Clause encompasses the “protection of voters.” See Smiley v. Holm,
285 U.S. 355, 366 (1932). The Court stated:
It cannot be doubted that these comprehensive words embrace authority to provide a
complete code for congressional elections, not only as to times and places, but in relation
to 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; in short, to enact the numerous requirements as to
procedure and safeguards which experience shows are necessary in order to enforce the
fundamental right involved.

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Id. (emphasis added).
As recently as 2013, the Supreme Court stated that the Elections Clause’s “substantive
scope is broad.” Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 8-9 (2013). “‘Times,
Places, and Manner,’ we have written, are ‘comprehensive words,’ which ‘embrace authority to
provide a complete code for congressional elections.’” Id. (citing Smiley, 285 U.S. at 366). Even
the narrowest interpretation of the Elections Clause would allow Congress to regulate activities
related to the casting of ballots. See id. at 35 (Thomas, J., dissenting) (arguing that it is “difficult
to maintain that the [Elections] Clause gives Congress power beyond regulating the casting of
ballots and related activities”). Any reasonable reading of this authority must include the
prevention of voter intimidation.
B. Because Congress Passed § 11(B) Pursuant to Its Authority Under the
Elections Clause, Nothing Limits It from Reaching Voter Intimidation by
Non-Governmental Actors.
Since Congress enacted § 11(b) pursuant to its authority under the Elections Clause, the
Statute reaches both private and public actors. This interpretation is supported by legislative
history and judicial precedent as well.
Congress expressed no doubt that § 11(b) reached conduct by private actors when the
House Report explained that it was authorized “to reach intimidation by private individuals” by
“article I, section 4, and the implied power of Congress to protect Federal elections against
corrupt influences”—powers which Congress described as “plenary within their scope.” H.R.
Rep. No. 89-439, at 30-31 (1965), reprinted in 1965 U.S.C.C.A.N. 2462.
The Supreme Court has also affirmed that the Elections Clause allows Congress to
regulate private conduct in the context of elections—a principle explicitly upheld in United
States v. Williams, 341 U.S. 70, 77 (1951) (citing Ex parte Yarbrough, 110 U.S. 651 (1884))

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(“The right of citizens to vote in congressional elections, for instance, may obviously be
protected by Congress from individual as well as from State interference.”).
Defendants attempt to support their claim that § 11(b) only applies to state actors by
citing a single district court decision from 1966 — United States v. Harvey, 250 F. Supp. 219,
225 (E.D. La. 1966) (holding that § 11(b) was enforceable only against “action by United States
or by particular state”). But that case, given the weight of Supreme Court precedent, is clearly
incorrect. In reaching its conclusion, the court in Harvey relied on the notion that Congress
passed § 11(b) under its Fifteenth Amendment authority. See id. But, for the reasons described
above, the Harvey court was plainly mistaken, relying on Congress’ sweeping statements about
the entire VRA, rather than the House Report, which spoke to the specific provision at issue, or
the Supreme Court precedent, which had already concluded that the Elections Clause empowered
Congress to combat voter intimidation.
Defendants also cite a footnote in a dissenting opinion in Nipper v. Smith, 39 F.3d 1494
(1994). Defs. Brief at 10-11. But that footnote does not even support the proposition for which
they cite it. First, the footnote, id. at 1498 n.1, refers to § 2 of the VRA, and second, it questions
the authority of Congress to regulate state elections—a matter not at issue here.
The source of constitutional authority for § 11(b), its text, its legislative history, clear
precedent, and U.S. Department of Justice practice all point in the same direction: § 11(b) applies
to the conduct of private individuals.2

2

Amici further note that, as an attorney in the U.S. Department of Justice, Defendant Adams
pursued, and vigorously defended in public, litigation against a private actor—the New Black
Panther Party—for violating § 11(b). See, e.g., The New Black Panther Party Hearing (2):
Hearing Before the U.S. Comm’n on Civil Rights, 111th Cong. 7, 19, 30 (2010) (testimony of J.
Christian Adams), available at http://www.usccr.gov/NBPH/07-06-2010_NBPPhearing.pdf ; J.
Christian Adams, Adams: Inside the Black Panther Case, Wash. Times (June 25, 2010),
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C. Section 11(B) Requires No Showing of Specific Intent, Nor Does It Require
Plaintiffs to Plead Racial Animus.
Section 11(b) was drafted specifically to prohibit acts that have the effect of intimidating
voters, regardless of whether a defendant subjectively intended this result. Nothing in the text or
legislative history of § 11(b) indicates that claimants must demonstrate that a defendant intended
for his actions to intimidate voters, let alone that a defendant’s conduct must be driven by racial
animus. To the contrary, both the plain language and the legislative history of the Statute indicate
that no showing of subjective intent is necessary to sustain a § 11(b) claim.
In this regard, it is noteworthy that an earlier provision, § 131(b) of the 1957 Civil Rights
Act, 52 U.S.C. § 10101(b), does require specific intent. Section 131(b) states:
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) (emphasis added). While similar to § 11(b) in certain ways, this
language is very different in several critical respects. Most importantly, unlike § 131(b), §
11(b) does not contain the phrase “for the purpose of,” emphasized above. Instead,
§ 11(b) reads: “[n]o 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 . . . .” 52 U.S.C. § 10307(b).
Congress’ omission of the phrase “for the purpose of” from § 11(b) was no accident.
Before the passage of the VRA, Department of Justice’s prosecutions of voter intimidation were
routinely frustrated by the fact that § 131(b) required claimants to prove something about the

https://www.washingtontimes.com/news/2010/jun/25/inside-the-black-panther-case-angerignorance-and-/.
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state of mind of the defendants. See Gilda R. Daniels, Voter Deception, 43 Ind. L. Rev. 343, 36061 (2010). In 1965, testifying before the House Judiciary Committee in support of the passage of
§ 11(b), Attorney General Nicholas Katzenbach, one of the drafters of the VRA, lamented this
feature of existing voter intimidation laws like § 131(b). See Voting Rights Act of 1965: Hearing
Before the H. Judiciary Comm., 111th Cong. (2010),
https://www.justice.gov/sites/default/files/ag/legacy/2011/08/23/03-18-1965.pdf. He explained
that “perhaps the most serious inadequacy results from the practice of some district courts to
require the Government to carry a very onerous burden of proof of ‘purpose.’ Since many types
of intimidation, particularly economic intimidation, involve subtle forms of pressure, this
treatment of the purpose requirement has rendered the statute largely ineffective.” Id. at 12. In
contrast, Katzenbach believed § 11(b) was a “substantial improvement” in part because “no
subjective ‘purpose’ need be shown . . . in order to prove intimidation . . . . This represents a
deliberate and, in [Katzenbach’s] judgment, constructive departure from the language and
construction of [§ 131(b)].” Id. Katzenbach explained that, instead of relying on a showing of
intent, under § 11(b), “defendants would be deemed to intend the natural consequences of their
acts.” Id.
The VRA’s House Report shows that Congress adopted Katzenbach’s reasoning: “[t]he
prohibited acts of intimidation need not be racially motivated; indeed, unlike [section 131(b)]
(which requires proof of a ‘purpose’ to interfere with the right to vote) no subjective purpose or
intent need be shown.” Ben Cady & Tom Glazer, Voters Strike Back: Litigating Against Modern
Voter Intimidation, 39 N.Y.U. Rev. L. & Soc. Change 173, 190 (2015). In other words, Congress
worded § 11(b) very carefully to ensure that plaintiffs would not have to prove defendants’
subjective intent or racial animus. See id. at 205 (“The most logical reading of section 11(b), in

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light of its legislative history and its textual changes from section 131(b), is that it reaches any
objectively intimidating conduct without regard to the defendant’s intent.”).
Defendants’ brief misses the mark by relying on cases addressing § 131(b)’s intent
requirement, Defs. Brief at 12-14. For example, Defendants cite to United States v. McLeod, 385
F.2d 734 (5th Cir. 1967), which is a § 131(b) case and does not address §11(b) at all. Indeed,
Defendants’ brief incorrectly and improperly alters a quote from McLeod to purportedly cite §
11(b) of the VRA, when in fact the quoted language refers to § 131(b) of the Civil Rights Act of
1957. See Defs. Br. at 12 (quoting McLeod, 385 F.2d at 740).
Defendants also cite to Olagues v. Russoniello, 797 F.2d 1511 (9th Cir. 1986), which
relies on McLeod’s interpretation of § 131(b)’s intent requirement and, as a result, conflates that
statute with § 11(b) with no acknowledgment of the material differences between the plain
language of both statutes. But, as discussed above, § 11(b) was drafted specifically not to have
an intent requirement and so to have a broader reach than § 131(b)). Similarly, Defendants cite,
in support of their incorrect interpretation of § 11(b), to Parson v. Alcorn, 157 F. Supp. 3d 479
(E.D. Va. 2016) and Pincham v. Illinois Judicial Inquiry Board, 681 F. Supp. 1309, 1317 (N.D.
Ill. 1988), aff’d, 872 F.2d 1341 (7th Cir. 1989). Again, both cases rely exclusively on the
incorrect interpretation of § 11(b) set out in McLeod and Olagues.
The interpretation of § 11(b) in Olagues was unfortunate, but this Court is not bound by it
or any of its progeny and need not repeat its errors. Instead, the Court should look to the plain
meaning of the text and the specific congressional intent behind § 11(b) to correctly interpret the
provision to require proof of neither specific intent nor racial animus.

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II.

A CLAIM UNDER THE “SUPPORT OR ADVOCACY” CLAUSE OF § 1985(3)
DOES NOT REQUIRE EITHER PROOF OF A VIOLATION OF AN
INDEPENDENT CONSTITUTIONAL RIGHT OR A SHOWING OF CLASS
BASED ANIMUS.

Defendants make two main arguments as to why the Complaint is insufficient to state a claim
under the text of § 1985(3). First, Defendants suggest that § 1985(3) requires state action and the
identification of an independent constitutional right that is being violated. Defs. Brief at 14-15.
Second, Defendants argue that the support or advocacy clauses of § 1985(3) require a showing of
class-based animus. Defs. Brief at 15-16. Both these assertions are contrary to the plain text of
§ 1985(3) and to established judicial precedent.
A. The Text of § 1985(3) Shows that There Are Five Distinct Clauses, Four of
Which Identify Legally Actionable Claims.
Section 1985(3) consists of five separate clauses, and to understand how distinct those
clauses are, it is useful to separate each clause into a paragraph (divided at each semi-colon), as
shown below:
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

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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).
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.
Although the different claims have been codified together, they are distinct provisions.
Tracing the congressional debate, the equal protection clauses were added first, and it was only
later that the “support or advocacy” clauses were added, separately, by an amendment. See Cong.
Globe, 42d Cong., 1st Sess. 704 (1871). The Supreme Court has recognized that the equal
protection clauses of § 1985(3) are distinct from its support or advocacy clauses, and as such,
they should be interpreted differently. See Kush v. Rutledge, 460 U.S. 719, 726 (1983)
(“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 Cady & Glazer, supra at 203-04.

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B. Allegations of a Violation of the “Equal Protection” Clauses of § 1985(3)
Would Require State Action, But the Plaintiffs Make Claims Based on the
“Support or Advocacy” Clauses, and Therefore Validly State Allegations
Against Private Actors.
As mentioned above, § 1985(3)’s long block of text might cause confusion about the
different requirements to make a claim under each clause. Fortunately, precedent can guide us.
Defendants’ § 1985(3) arguments rest on a fundamental misconception about Plaintiffs’
§ 1985(3) claim – namely, that the claim is made under the “equal protection” rather than the
“support or advocacy” clauses. Defs. Brief at 14-19. For example, Defendants assert that “a court
faced with a § 1985(3) claim must first determine whether the purported conspiracy is alleged to
have breached some otherwise defined federal right.” Defs. Brief at 14 (internal quotation marks
omitted). Similarly, Defendants assert that Plaintiffs allege a conspiracy to violate their First
Amendment rights. Defs. Brief at 15 (“Exercise of such political support or advocacy is a First
Amendment right . . . .”). These mistaken assertions lead Defendants to wrongly conclude that
§ 1985(3) requires state action, the identification of an independent constitutional right being
violated, and class-based animus. Defs. Brief 15-19.
In reality, Plaintiffs never alleged that they have had their First Amendment rights
infringed. Rather, the pleadings allege a violation of Plaintiffs’ statutory rights under clauses
three and four of § 1985(3) – that is, the support or advocacy clauses. Compl. ¶¶ 52-73.
Plaintiffs’ pleadings include allegations that “Defendants conspired with each other and with
VVA to knowingly accuse constitutionally eligible voters, including Plaintiffs, of having
committed felony voter fraud with the purpose of intimidating those and other voters in an effort
to prevent them from voting or registering to vote,” id. ¶ 54 (a violation of clause three of §
1985(3)), and that “Plaintiffs Eliud Bonilla, Luciania Freeman, Abby Jo Gearhart, and Jeanne
Rosen, each of whom was constitutionally eligible to vote in Virginia, were injured and continue

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to be injured by being wrongly accused as having committed multiple felonies and having their
contact information . . . published,” id. ¶ 61 (a violation of clause four of § 1985(3)).
In order to grasp why the “support or advocacy” clauses do not require state action, the
identification of an independent constitutional right being violated, or class-based animus, it is
useful to understand why these requirements do 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. Sav. & Loan 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 claims under the “equal protection” clauses of § 1985(3) 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 alleging a violation under the “equal protection” clauses typically
requires 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.” Id. Some exceptions exist, such as a claim of conspiracy to deprive individuals of
their rights under the Thirteenth Amendment, which does not require a showing of state action.
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 . . . .”); Griffin
v. Breckenridge, 403 U.S. 88, 104-05 (1971).

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Furthermore, a claim under the “equal protection” clauses of § 1985(3) must satisfy the
two-part test from Griffin v. Breckenridge, which requires plaintiffs to show class-based animus.
The Supreme Court has unambiguously stated that the Griffin class-based animus test applies
only to § 1985(3)’s equal protection claim. See Bray v. Alexandria Women’s Health Clinic, 506
U.S. 263, 267-68 (1993) (stating that the two-part Griffin test applies to “the first clause of §
1985(3)”); Kush, 460 U.S. at 725-26 (declining to extend the rationale of Griffin to the other §
1985 claims because they are not similarly limited by the equal protection clause). This
interpretation is consistent with the KKK Act’s legislative history. Congress was concerned not
only with the Klan’s targeting of blacks, but also political supporters of Reconstruction-Era
Republicans. Mark Fockele, A Construction of Section 1985(c) in Light of Its Original Purpose,
46 U. Chi. L. Rev. 402, 410-11 (1979) (describing the political threat of the Ku Klux Klan).
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, 403 U.S. at
102; see also Carpenters, 463 U.S. at 833-5; (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 their own
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). No separate right need be identified.
See, e.g., Paynes v. Lee, 377 F.2d 61, 63-64 (5th Cir. 1967). Furthermore, given that no separate
constitutional right need be implicated, the support or advocacy clauses of § 1985(3) do not
require state action, a violation of independent constitutional right, or class-based animus;

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instead, they apply, as the language of the provision suggests, to “citizens” that meet the
requirements of the provision.
III.

DEFENDANTS’ ALLEGED CONDUCT RISES TO THE LEVEL OF
“INTIMIDATION” AS THAT TERM IS COMMONLY UNDERSTOOD, AND
AS THE TERM WAS USED BY CONGRESS WHEN ENACTING BOTH
§ 11(B) AND § 1985(3).

The Defendants’ alleged conduct is the type of serious intimidation and injury that § 11(b)
and § 1985(3) proscribe. To understand that the alleged conduct constitutes intimidation, one
must discern what the statutes mean when they prohibit “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)). Under that
standard, the facts alleged here fall squarely within the statutes.
A. Defendants’ Alleged Conduct Falls Within the Commonly Understood Meaning of
the Term “Intimidation” Under Both § 1985(3) and § 11(B).
With respect to the natural and ordinary interpretation of “intimidation” in § 11(b) and
§ 1985(3), the Court can draw guidance from (at least) four sources: at the most basic level,
dictionary definitions of the term in question provide helpful guidance; second, the Court can
look to the interpretation of the word “intimidation” in the context of other federal civil rights
cases; third, it can conduct the same inquiry with respect to state civil rights cases; finally, this
Court can look to the interpretation of the term “intimidation” by the Department of Justice. Each
of these sources suggests that the alleged conduct constitutes intimidation for the purposes of
§ 11(b) and § 1985(3).
Starting with the most basic understanding of the term “intimidate,” Webster’s dictionary
from 1867, which is contemporaneous with the enactment of § 1985(3), defines intimidate as
“[t]o make fearful; to inspire with fear.—S[yn]. [t]o dishearten; dispirit; abash; deter; frighten;
terrify.” Noah Webster, An American Dictionary of the English Language 555 (1867),
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https://babel.hathitrust.org/cgi/pt?id=loc.ark:/13960/t7cr73m53;view=1up;seq=583; see also
Cady & Glazer, supra, at 196 (citing multiple general use and legal dictionaries and determining
that “to ‘intimidate’ is to make another person fearful, especially in order to influence his or her
conduct”). This definition does not mention methods (whether physical, psychological, or
otherwise); it merely notes the state of mind that the perpetrator implants in the victim(s).
Moving to federal civil rights cases, the term “intimidation” is used in statutes other than
§ 1985(3) and § 11(b) and the definition of that term in cases dealing with those statutes is
instructive. These cases make clear that “intimidation” is not limited to overt displays of physical
force and violence, but extends to a range of conduct that would reasonably place an individual
in fear.
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). The court 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. Further, 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

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held that plaintiffs stated claims for intimidation even where the defendants’ 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 Helpers, Inc. v. City of Richmond, 789 F. Supp. 725, 733 (E.D. Va. 1992) (excessive
investigations by the city of a rental property).
Section 131(b) of the Civil Rights Act (52 U.S.C. § 10101(b)) is also instructive insofar
as it provides guidance on the types of conduct that can be considered intimidating. 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. Bruce, 353 F.2d
474 (5th Cir. 1965) (voter intimidation claim arose when white landowners ordered black
defendant, an insurance collector active in encouraging voter registrations, to stay off their
property, preventing him from reaching business clients); 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) (voter
intimidation arose when white business owners refused to engage in business transactions with
black farmers who attempted to register to vote). See also Cady & Glazer, supra, at 193-202
(summarizing several cases where courts interpreted the term “intimidate” or “intimidation” with
respect to civil rights).
Perhaps the most useful case for defining intimidation in an electoral context is a recent
one with a fact pattern similar to this case. 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

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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
(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 forcefully coercive.” Id. at 1265.
As for the Department of Justice, it says that intimidation is 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 (7th ed. 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. Regarding
the release of sensitive personal information and its ability to constitute 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 considered to put
individuals at harm of “identity theft, embarrassment, or blackmail,” according to the Guide to
Protecting the Confidentiality of Personally Identifiable Information (PII), Erika McCallister et
al., National Institute of Standards and Technology ES-1 (2010),
http://nvlpubs.nist.gov/nistpubs/Legacy/SP/nistspecialpublication800-122.pdf. 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

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account numbers, passwords, and biometric identifiers.” Memorandum from Shaun Donovan,
Dir., Exec. Office of the President, Office of Mgmt. & Budget, to Heads of Exec. Dep’ts &
Agencies, Preparing for and Responding to a Breach of Personally Identifiable Information 22,
(Jan. 3, 2017), https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2017/m17-12_0.pdf.
Plaintiffs have pled colorable claims of intimidation and injury under both § 11(b) and §
1985(3) by the dissemination of voters’ private information and personal details, including, in
some cases, their Social Security numbers.
B. Defendants’ Alleged Conduct Is a Modern Form of the Acts that § 11(B) Sought to
Prohibit.
At the time Congress enacted § 11(b), a wide variety of methods were used to intimidate
voters in addition to overt physical violence and economic harm. For example, segregationists
produced and disseminated lists of names and addresses of black citizens who had registered to
vote or who were against segregation. E.g. U.S. ex rel. Katzenbach v. Original Knights of KKK,
250 F. Supp. 330, 342 (E.D. La. 1965) (describing intimidating KKK handbills posted to identify
specific individuals and businesses that the KKK was targeting). In Haywood County,
Tennessee, after African Americans began to register to vote in 1960, more than 100 white
citizens organized a “systematic campaign of intimidation,” including preparing and circulating a
list of black citizens to be denied credit. Voting Rights: Hearings Before the S. Subcomm. on the
Judiciary, 89 Cong. 1292 (1965). The inclusion of an individual’s name on such a list was
intimidating because it exposed that individual to harm. See Civil Rights: Hearings Before the S.
Subcomm. on Constitutional Rights of the Committee on the Judiciary, 85 Cong. 293-99 (1957)
(describing the plight of a black family in rural Alabama forced to move to another state after
being featured in a Life magazine story discussing their support for desegregation).

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Publication of black voters’ names and addresses was such an effective method of
intimidation that, in 1962, the Mississippi state legislature codified the practice, establishing a
requirement that, by law, the names of all applicants attempting to register to vote be published
in a local newspaper once a week for two weeks. United States Commission on Civil Rights,
Voting in Mississippi 9 (1965). This requirement removed any hope of anonymity for black
voters, thereby exacerbating fears of intimidation and reprisal. See id. at 61; see also King v.
Cook, 298 F. Supp. 584, 587 (N.D. Miss. 1969) (“Reticence to apply for registration might have
been intensified . . . by publication in the local newspaper of the names and addresses of all
applying for registration . . . .”). As the United States Commission on Civil Rights noted, “[i]n
this climate a single incident of reprisal may be sufficient to deter many potential registrants.”
Voting in Mississippi at 39.
And such incidents did occur. In one case, a woman who registered to vote had her name
published in the local newspaper and, the next day, was arrested on a charge of passing a bad
check for $5.15. Id. at 23. In another case, a retired school teacher registered to vote and, when
her name was published in the newspaper, she returned home to find a life-sized effigy of a
woman hanging above her mailbox. Id. at 27. She testified that she thought this was done “to
scare [her],” and, although she did go to the county seat to register, the woman testified that “fear
of violence made her unwilling to go to her polling place to vote in the elections which
followed.” Id.
Mississippi’s registration requirements were so restrictive that, in 1965, the United States
Department of Justice challenged them in federal court. While the district court dismissed the
complaint, the Supreme Court, in a unanimous decision, held that “the allegations of this
complaint were too serious, the right to vote in this country is too precious . . . for this complaint

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to have been dismissed.” United States v. Mississippi, 380 U.S. 128, 144 (1965). The Mississippi
Legislature repealed the provision regarding publication of voter information in June 1965,
before the lower court could rule on it. See King, 298 F. Supp. at 587. However, repeal of
Mississippi’s law did not end the intimidation of potential voters through collection and
publication of their names and addresses.
The Defendants’ conduct is a modern form of such intimidating acts. It is widely
understood that exposing individuals’ direct identifiers on the Internet – including, in this case,
the names, addresses, telephone numbers, and Social Security numbers – can cause them
significant harm. See, e.g., Joey L. Blanch & Wesley L. Hsu, Cyber Misbehavior, 64:3 U.S.
Dep’t of Just. Bull. 2, 5 (2016), https://www.justice.gov/usao/file/851856/download (“Another
form of cyberharassment is ‘doxing,’ which refers to broadcasting personally identifiable
information about an individual on the Internet. It can expose the victim to an anonymous mob
of countless harassers, calling their phones, sending them email, and even appearing at the
victim’s home.”).
The dissemination of Plaintiffs’ names by Defendants is, arguably, even more egregious
due to the magnifying effect of the Internet. At the time the VRA was passed, segregationists
were limited in how widely they could distribute the names of individuals they had singled out.
Today, however, names can be distributed instantaneously to millions of people over the Internet
– significantly increasing the potential harm to those individuals, through, for example, identity
theft and online and in-person threats.
Finally, the practice of collecting and publishing individuals’ personal information,
including their names, addresses, and phone numbers, has repeatedly served as the basis for
criminal prosecution. This Circuit upheld the criminal conviction of white supremacist William

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White on multiple counts of transmitting in interstate commerce—by email, U.S. Mail, and
telephone—threats to injure or intimidate individuals, after White published individuals’
personal information on his website, “www.overthrow.com.” See United States v. White, 670
F.3d 498, 501-04 (4th Cir. 2012). Similarly, the Seventh Circuit upheld the conviction of White
for soliciting the commission of a violent federal crime against a juror, after White published
online the juror’s name, address, and phone numbers. See United States v. White, 698 F.3d 1005,
1008 (7th Cir. 2012).
At a time when these types of attacks are on the rise, having one’s name and personal
information published on the internet by an anti-voting rights group – and being singled out to a
mob of online “activists” as someone who has violated the law – would reasonably place one in
fear of voting.
C. Congress’ 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, the modern form of conspiracies seeking to intimidate and injure individuals and
scare the public from offering their support or advocacy for candidates is perfectly encapsulated
in 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 not only for the
purpose of suppressing the minority vote, but also for the related purpose of producing electoral
outcomes favorable to the Klan’s political party of choice. And so, in 1871, Congress passed
§ 1985(3) to combat the Klan’s tactics of racial and political suppression. The legislative history
and historical backdrop clarify that § 1985(3) was intended to protect individuals from fear or
harm caused by conspirators when giving their political support or engaging in political

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advocacy. Properly understood in light of this original purpose, § 1985(3) prohibits the type of
organized, racially and politically motivated harassment that Plaintiffs allege. Contrary to
Defendants’ assertions, the Complaint does not allege “purely political conspiracies,” Defs. Brief
at 16, but instead alleges racially and politically motivated harassment broadly targeting Latinos
as a class and their perceived political allies. Compare Defs. Brief at 18 with Compl. ¶ 63 (“The
Latino community, including members of LULAC, will be discouraged from participating in the
electoral process as a direct result of Defendants’ conduct.”).
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 Amendments made possible a period of widespread
electoral success for African-American voters and the Republican Party. Eric Foner,
Reconstruction: America’s Unfinished Revolution, 1863–1877, at 291-307 (Henry Steele
Commager & Richard B. Morris eds. 1988). 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. Id. 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 violence 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

3

Foner recounts organizations like the “Knights of the White Camelia” and the “White
Brotherhood.” Foner, supra, at 425.
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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.
The escalation of violence 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., Fockele, supra
at 407-11. 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, was to wrest control
of the state governments from the Republican party and to reestablish Democratic
hegemony in the South.
Id. at 408-09 (footnotes omitted; alterations in original) (quoting H.R. Rep. No. 1, 42d Cong., 1st
Sess. xxx-xxxi).
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., Cong.
Globe, 42d Cong., 1st Sess. 460 (1871) (statement of Rep. John Coburn (R-Ind.)),
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

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carry elections. We would suppress them, would punish them; we would restore order, fairdealing, equality, and peace, to secure free elections.”).
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 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 for Defendants to
escape liability under the support or advocacy clauses of § 1985(3).
Defendants’ conduct sends a clear message to Plaintiffs – and to all Americans who are
considering voting – that the price of 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 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 Defendants’ motion to dismiss.
Dated this 12th day of June 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 12th day of June, 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

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