Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 1 of 46 PageID# 443 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Alexandria Division ---------------------------------: : LEAGUE OF UNITED LATIN : AMERICAN CITIZENS - RICHMOND : REGION COUNCIL 4614, et al., : Plaintiffs, : : -vs: : : PUBLIC INTEREST LEGAL FOUNDATION,: et al., : Defendants. : : ---------------------------------: Case No. 1:18-cv-423 HEARING ON MOTIONS June 22, 2018 Before: Liam O'Grady, USDC Judge APPEARANCES: Anisa A. Somani, Sean M. Tepe, Cameron Kistler, and Jeffrey Loperfido, Counsel for the Plaintiffs Michael J. Lockerby, William E. Davis, and Eli L. Evans, Counsel for the Defendants Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 2 of 46 PageID# 444 2 1 THE CLERK: The Court calls case 1:18-cv-423, League 2 of United Latin American Citizens, Richmond Region Council 3 4614, et al. versus Public Interest Legal Foundation, et al. 4 for a motion hearing. 5 6 7 8 9 10 11 May I have the appearances, please, first for the plaintiffs. MS. SOMANI: Good afternoon. Somani, I am lead Virginia counsel for the plaintiffs. THE COURT: All right. MR. SOMANI: With me are my co-counsel, I have Cameron Kistler on behalf of Protect Democracy. 12 MR. KISTLER: 13 MS. SOMANI: 14 Good afternoon, Your Honor. We have Mr. Jeff Loperfido on behalf of Southern Coalition for Social Justice. 15 MR. LOPERFIDO: 16 MS. SOMANI: 17 My name is Anisa Good afternoon, Your Honor. And we also have Mr. Sean Tepe as pro bono counsel. 18 THE COURT: All right. 19 MR. TEPE: 20 THE COURT: 21 MR. LOCKERBY: Good afternoon, Your Honor. Good afternoon to each of you. Your Honor, I am Mike Lockerby with 22 the Washington office of Foley & Lardner representing the 23 defendants, the Public Interest Legal Foundation and J. 24 Christian Adams. 25 With me at counsel table is my partner, Bill Davis, Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 3 of 46 PageID# 445 3 1 who has been admitted pro hac vice in this case. 2 And then immediately behind us is Christian Adams to 3 Your Honor's left, who is president of the Foundation and a 4 defendant named individually. 5 6 Beside Mr. Adams is Eli Evans, an associate in our Washington office. 7 THE COURT: 8 And I appreciate your patience in getting here. 9 All right, good afternoon to each of you. The docket just kind of kept getting longer the closer we got to 10 Friday, and I should have let you know that 10 o'clock wasn't a 11 realistic time. 12 And I apologize for not doing so. All right. This comes on motions to dismiss the 13 complaint. 14 the case law, and I will hear anything else you would like to 15 say now, Mr. Lockerby. 16 And I've read the submissions and looked at some of MR. LOCKERBY: Thank you, Your Honor. With the 17 Court's permission, Mr. Davis and I would like to divide up the 18 argument. 19 standing of LULAC, as well as the sufficiency of the 20 allegations of violations of the Voting Rights Act and the Ku 21 Klux Klan Act. I had planned to address the threshold issue of 22 Whereas, Mr. Davis will address the legal sufficiency 23 of the plaintiffs' defamation claims, along with the anti-SLAPP 24 statute affirmative defense. 25 As Your Honor indicated, this case has been Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 4 of 46 PageID# 446 4 1 extensively briefed, so I am not going to rehash the factual or 2 legal context in which it arises, except to emphasize a few key 3 points that are critical to all the arguments and all the 4 counts. 5 The Foundation is a public interest law firm 6 dedicated to the integrity of elections. 7 Foundation sought and eventually obtained from state and local 8 elections officials in the Commonwealth certain records about 9 voter rolls, it was exercising its rights under the National 10 11 And when the Voter Registration Act. And similarly, when the Foundation published two 12 reports summarizing and attaching the public records that it 13 had obtained, it was exercising its First Amendment right to 14 advocate on behalf of U.S. citizens that their votes ought not 15 be cancelled out by the votes of people who aren't citizens. 16 Now, the plaintiffs are -- 17 THE COURT: What responsibility did plaintiffs have 18 to review the public records once they were put on notice that, 19 hey, these may not be accurate? 20 MR. LOCKERBY: Well, Your Honor, certainly to the 21 extent that there were some inaccuracies brought to their 22 attention, those were corrected in the second report. 23 fact, two of the individual plaintiffs were not named in the 24 second report. 25 And in Now, there are also some disagreements about the Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 5 of 46 PageID# 447 5 1 implications to be drawn from those reports, but that's really 2 a First Amendment issue. 3 Foundation draws, and then people make countervailing 4 arguments, but at the end of the day these are public records. 5 And if anyone was remiss, if there are any inaccuracies in 6 these records, it really was the state and local officials who 7 maintained the records, not our clients. There are conclusions that the 8 And what the plaintiffs clearly did is -- or the 9 defendants rather, is they made truthful statements in the 10 reports. 11 register to vote. 12 non-citizen to vote. 13 First, that it's a felony for a non-citizen to And second, it's also a felony for a And the public records from various jurisdictions 14 around the Commonwealth showed literally thousands of 15 non-citizens who were registered to vote -- who are registered. 16 And these truthful statements were the basis for each of the 17 claims that the plaintiffs have asserted. 18 Now, first with respect to standing. Even if the 19 complaint alleged facts sufficient to establish violations of 20 the various causes of action at issue, LULAC, the League of 21 United Latin America Citizens of the Richmond Region, would not 22 have standing to assert these claims. 23 And from their opposition, it appears that LULAC is 24 misinformed about a basic principle of civil procedure. 25 insist that the reports at issue target Latinos, and that Rule Norman B. Linnell OCR-USDC/EDVA They (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 6 of 46 PageID# 448 6 1 12(b)(6) requires this Court to accept as true the allegations 2 of the complaint that the reports target Latinos. 3 But if there is an inconsistency between what the 4 reports say and what the complaint says the reports say, then 5 the actual language of the reports is controlling. 6 Here, the reports do not mention Latinos. They don't 7 mention Latin American countries at all. 8 about the national origin, the ethnicity, the race, or any 9 other demographic characteristic of non-citizens registered in 10 They say nothing Virginia. 11 The reports also do not distinguish between 12 non-citizens who are legally resident in this country and 13 illegal aliens. 14 difference. 15 register to vote or to vote. 16 As a matter of law, it doesn't make a Either way, it's a felony for a non-citizen to As far as a reader could tell from the reports, the 17 non-citizens could be Canadians who want to live somewhere with 18 a winning hockey team. 19 meddle in elections. 20 They could be Russians who want to It says nothing about Latinos. And so, there is not a single word in either report 21 that could be construed as being directed against members of 22 LULAC. 23 America Citizens. 24 25 Which, by the way, stands for League of United Latin Now, there are two potential bases for standing, as the parties have argued. Organizational standing, where LULAC Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 7 of 46 PageID# 449 7 1 brings suit on its own behalf, or under a representational 2 theory on behalf of its members. 3 Under the organizational standing test, LULAC has 4 standing only if it has suffered injury that is concrete and 5 particularized, actual or imminent -- not conjectural -- and 6 likely -- not speculative -- to be redressed through a 7 favorable decision. 8 9 The case law that we've cited establishes that the types of injury that the plaintiffs are alleging does not meet 10 this test. 11 conduct and the organization's mission is insufficient under 12 Goldstein. 13 insufficient under Jefferson versus School Board of Norfolk. 14 Setback to some abstract social interest, such as eliminating 15 discrimination under Buchanan, that's insufficient. 16 resulting from the organization's own budgetary choices, which 17 the Fourth Circuit found insufficient in Lane versus Holder. 18 For example, conflicts between the defendants' Some general harm to the organizational purpose is Or harm The injury has to be traceable to the defendants' 19 conduct, not the conduct of a third party, and under the Fourth 20 Circuit's decision in Friends of the Earth. 21 Here, the complaint in paragraph 50 talks about 22 anonymous postings by third parties, not these defendants. 23 much of the negative rhetoric and perceptions that LULAC is 24 concerned about as alleged in the complaint predated 25 publication of the reports. Norman B. Linnell OCR-USDC/EDVA And (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 8 of 46 PageID# 450 8 1 Now, they have come back with the argument that they 2 have been held to have standing in other cases, but that 3 doesn't mean that they meet their burden of showing standing 4 here. 5 And to the contrary, as Judge Doumar found in 6 Goldstein, the fact that LULAC brings so many lawsuits 7 undercuts its diversion of resources claim. 8 9 Now, in opposition, the plaintiffs have also argued, well, we really meant to allege representational standing. But 10 to meet their burden, again under Friends of the Earth, first 11 of all, they have to show that at least one member of the 12 organization has standing to sue in his or her own right. 13 haven't alleged a single individual member of LULAC who would 14 have standing as required by the Supreme Court's decision in 15 Summers. 16 They Instead, they have merely alleged harm generally to 17 LULAC's members and to the Latino community that LULAC 18 represents, and they have merely speculated that Latino voters 19 will be discouraged from participating in the electoral 20 process. 21 THE COURT: They have also tied in the Bowsher 22 doctrine and said that as long as there is standing by any of 23 the plaintiffs, that as a result standing is not an issue I 24 should even look at, and should permit them to remain in the 25 case, right? Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 9 of 46 PageID# 451 9 1 MR. LOCKERBY: They have said that, Your Honor. But 2 the individual plaintiffs in this case are not alleged to be 3 members of LULAC. 4 individual members who allegedly would have standing. 5 And LULAC has not identified any of its THE COURT: So the argument would be that they all 6 have a common injury, and that as a result, whether it's an 7 individual who is not Latino or not, isn't controlling? 8 9 MR. LOCKERBY: jury. Well, they would have to show a common And that really does get to the merits of the other 10 causes of action, the Voting Rights Act, the Ku Klux Klan Act, 11 and defamation, because they can't show, even if a LULAC member 12 was named in these public records, that there has been any 13 injury, let alone any cause of action. 14 And we can start with the Voting Rights Act. Section 15 11(b) does not authorize voter intimidation claims against 16 non-government actors. 17 Court need look no further than the Fifteenth Amendment upon 18 which the Voting Rights Act is based. 19 20 21 THE COURT: And to see that that's the case, the It prohibits states -- What if I find that it's based on the Elections Clause. MR. LOCKERBY: Well, even if it's based -- there is 22 no evidence that it's based on the Elections Clause. 23 Voting Rights Act says it's an act to enforce the Fifteenth 24 Amendment to the Constitution of the United States and for 25 other purposes. Norman B. Linnell OCR-USDC/EDVA The (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 10 of 46 PageID# 452 10 1 The DoJ guide to it on the Internet says it codifies 2 and effectuates the Fifteenth Amendment's permanent guarantee 3 that throughout the nation no person shall be denied the right 4 to vote on account of race or color, et cetera. 5 authority cited in our briefs, certainly from the Fourth 6 Circuit and the Eleventh Circuit, and at least one District 7 Court, that it's limited in scope to state actions. 8 So if the Court -- 9 THE COURT: 10 or otherwise"? 11 And there is Well, why does it say "under color of law How do I interpret that? MR. LOCKERBY: Well, certainly there is precedent for 12 finding a violation if there is action between a state actor 13 and someone else. 14 1985. 15 For example, a conspiracy under section But certainly with respect to section 11(b), there is 16 no case anywhere that has held that a purely private action is 17 actionable under 11(b). 18 come is they cited a case from Arizona that no other court has 19 followed, which was the Arizona -- I forget the exact name of 20 the party. 21 the argument that there was a cause of action, and yet found no 22 violation anyway. 23 The closest that the plaintiffs have But in any event, the Court assumed for purposes of More importantly, even if it applies to private 24 conduct, and that would be unprecedented, mere publication of 25 the first and second reports is not intimidation, threats, or Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 11 of 46 PageID# 453 11 1 coercion prohibited by section 11(b). 2 And again, to see the insufficiency of the 3 plaintiffs' allegations in this regard, the Court need look no 4 further than the complaint itself. 5 quoting now from paragraph 31, "labelling the individuals named 6 in the reports as non-citizens and, therefore, felonies with 7 reckless disregard for the truth of those allegations." 8 9 The complaint alleges, I'm There is no plausible allegation of anything that the defendants did that would rise to the level of intimidation, 10 threats, or coercion. 11 intimidation, threats, or coercion based on similar facts. 12 They don't cite any case law finding The only cases that the plaintiffs do cite involved 13 direct mailings to voters. 14 plaintiffs. 15 letters sent to individuals targeted -- identified as targets 16 because of their Latino surnames and their party registrations. 17 Another where the complaint alleged that there were postcards 18 mailed, again based on party registrations and race. 19 then, the consent decree denied -- or the defendants denied 20 that they had engaged in intimidation. 21 And even those don't support the One was a Ninth Circuit case where there were And even Here there was no targeting of any plaintiff. The 22 reports did not even mention them. Their names were not among 23 the thousands of non-citizen registered voters identified in 24 the government documents attached as exhibits. 25 allege the requisite intent to intimidate to establish a Norman B. Linnell And they don't OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 12 of 46 PageID# 454 12 1 section 11(b) violation. 2 THE COURT: So if I find that specific intent is not 3 necessary, then what do you believe my standard of review still 4 has to be? 5 MR. LOCKERBY: Well, that there has been an 6 allegation of conduct that is intimidation, coercion, or 7 threats. 8 Judge Lauck said that that requires specific intent to 9 intimidate or attempt to intimidate. 10 And those words do have specific meaning. Certainly But even if Your Honor disagrees with Judge Lauck's 11 interpretation in the Parson case, there has to be conduct, 12 this goes back to Rule 12(b)(6) and Twombly, that plausibly 13 alleges intimidation, threats, or coercion. 14 And here it's simply too attenuated. There is 15 nothing that names the plaintiffs by name. 16 that suggests that anyone who is lawfully registered to vote 17 should be prevented from doing so. 18 There is nothing You simply have a public interest organization 19 advocating that the law be enforced. 20 groups, including some in this courtroom, that advocate 21 otherwise. 22 advocate. 23 And there are other And they both have a First Amendment right to so Similarly, these allegations don't rise to the level 24 of a conspiracy in violation of the so-called Ku Klux Klan Act, 25 section 1985(3). A mere agreement to publish the reports is Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 13 of 46 PageID# 455 13 1 not sufficient to establish an unlawful conspiracy. 2 Ellis held in the Polidi case: 3 1985 conspiracy must allege an agreement or a meeting of the 4 minds to violate the claimant's constitutional rights. 5 As Judge A plaintiff asserting a section And the essential elements of the conspiracy that the 6 plaintiffs have the burden of alleging is either to prevent by 7 force, intimidation, or threat any citizen who is lawfully 8 entitled to vote from giving his support or advocacy in a 9 federal election or to injure any citizen and person or 10 property on account of such support. 11 Now, in Polidi Judge Ellis also found that state 12 action is required to establish a 1985(3) violation, albeit 13 under a different provision. 14 Ellis invented out of whole cloth, although the requirement is 15 admittedly not in the text of the statute. 16 decision was based on the Fourth Circuit's decisions in Thomas 17 versus Salvation Army and Simmons versus Poe. 18 That's not something that Judge Rather, the And here is where the plaintiffs want this Court to 19 ignore these controlling Fourth Circuit precedents and instead 20 follow the Arizona case to which I alluded earlier, Arizona 21 Democratic Party, that is unpublished, never been cited 22 anywhere. 23 because the Court merely presumed the application of the 24 support and advocacy clause to non-state actors, but ultimately 25 denied the motion. And even that decision doesn't really help them Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 14 of 46 PageID# 456 14 1 Even if a private conspiracy is actionable, 1985(3) 2 requires an allegation of some racial animus or some other 3 animus that is prohibited. 4 in the Duressa case, which did not involve support or advocacy, 5 that there has to be some racial or perhaps other class-based 6 invidious discrimination and something that is protected 7 against private as well as official encroachment. 8 holding, the Court was quoting from the Supreme Court's 9 decision in Bray versus Alexandria Women's Health Clinic. 10 And that's why Judge Cacheris found And in so The plaintiffs have failed to allege the requisite 11 racial animus. And not surprisingly, the Fourth Circuit in 12 both -- given the name of the statute, the Ku Klux Klan Act and 13 its history, the Fourth Circuit in both Thomas and Simmons held 14 that there had to be allegations and proof of motivation by a 15 specific class-based invidiously discriminatory animus. 16 these cases, again, do not involve support or advocacy clause 17 claims, but there is no reason to expect that the Fourth 18 Circuit would decide such claims any differently. And 19 So with that, unless the Court has any question about 20 these first issues, I would like to turn the podium over to Mr. 21 Davis to address the defamation and anti-SLAPP statute issues. 22 THE COURT: Thank you. 23 MR. DAVIS: Good afternoon, Your Honor. 24 25 Let's hear from Mr. Davis. William Davis on behalf of the defendants. I will be very brief, I don't want to repeat what Mr. Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 15 of 46 PageID# 457 15 1 Lockerby said concerning the facts. 2 out that with respect to a defamation claim in this 3 jurisdiction and in most jurisdictions, there is three basic 4 essential elements to it. 5 the plaintiff. 6 7 8 9 But I would like to point The first one is a publication about The second is an actionable statement, which has to be both false and defamatory. And lastly, it has to be done with the requisite level of intent. And with respect to a private party in terms 10 of a defamation, that intent could be based on negligence, it 11 could be based on recklessness. 12 Now, in this particular case, it is our position that 13 given the allegations in the complaint, they do not state a 14 cause of action specifically sounding in defamation. 15 don't articulate any specific statements which were made by 16 these defendants about these particular defendants. 17 They The point is, you know, the defendants' names do 18 appear in appendices amongst hundreds or perhaps even thousands 19 of other individuals. 20 document, it makes reference to a Web site, you have to go to 21 the Web site to actually get the names, and the names are 22 specifically buried amongst -- 23 THE COURT: But in terms of the actual published So you don't think it's incorporated by 24 reference and it's available to the public to go and check and 25 see whether these -- you know, the names, whether in one or two Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 16 of 46 PageID# 458 16 1 are there? 2 MR. DAVIS: I can't deny that it's not incorporated 3 by reference in terms of what the public documents say. 4 arguing though that when you look at the four corners of this 5 complaint, there is no statements in the complaint that these 6 allegations are directed at the particular four plaintiffs that 7 are before the Court. 8 9 10 THE COURT: Just the accusations that they should not have been eligible to vote, that they did vote, and that they're committing felonies if they did so? 11 12 I am MR. DAVIS: There is plenty of statements in the articles concerning what the law is. 13 THE COURT: Right. 14 MR. DAVIS: And concerning whether or not a 15 non-resident, if the non-resident registers, obviously, it's 16 violative of the law and/or if such non-resident votes. 17 But our point is that the allegations are not 18 particularly attributed to these particular plaintiffs before 19 the Court. 20 The other thing is with regard to the evaluation of 21 these two reports in connection with the laws of defamation, I 22 believe the law in this jurisdiction is that they need to be 23 read in their entirety. 24 25 You need to look at the entire scope. And these particular reports are rife, you know, with what is likely or what is potential or what could happen. Norman B. Linnell OCR-USDC/EDVA So (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 17 of 46 PageID# 459 17 1 the general gist of it is not necessarily an affirmative 2 allegation of wrongdoing. 3 to these four plaintiffs. 4 And it specifically is not directed There is an Exhibit 10 to the -- I believe it's the 5 second report, which contains somewhat of a disclaimer which 6 says: 7 incorporated by reference. 8 this Court's evaluation of the sufficiency of the pleading, 9 that the exhibit attached to the complaint is controlling over Data on the report is not accurate. Which is also And I think for the purposes of 10 any allegations which are made in the complaint if it's in 11 contradiction. 12 That would be addressing the -- oh, and in terms of 13 the cases which they have cited in their response in response 14 to the motion to dismiss the defamation, there is three cases, 15 Hatfill, Carwile, and Hyland. 16 those cases, there is a specifically named party plaintiff 17 where the facts are directed to provide the basis for the 18 defamation. 19 And in each and every one of Lastly, we believe that the articles with regard to 20 voter registration and non-citizens registering and voting are 21 matters of public concern which should be protected, basic 22 First Amendment rights, and should be protected under the 23 Virginia anti-SLAPP statute. 24 statute. 25 It's a classic reason for that So, Your Honor, on that basis, we would submit that Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 18 of 46 PageID# 460 18 1 the defamation counts should be dismissed. 2 Thank you. 3 THE COURT: 4 All right. 5 MS. SOMANI: All right. Thank you, sir. With your permission, Your Honor, we 6 would like to divide the argument and response. 7 Cameron Kistler, is prepared to present argument or answer any 8 questions you have on the federal voter claims. 9 My colleague, My colleague, Mr. Jeff Loperfido, is prepared to 10 present any arguments and answer any questions you may have on 11 the defamation claims. 12 13 14 15 And my colleague, Mr. Sean Tepe, is prepared to answer any questions you may have on standing. THE COURT: Okay. All right. Who wants to go first? Go ahead, you are closest to the podium. 16 And you are going to address which argument? 17 MR. KISTLER: 18 THE COURT: 19 MR. KISTLER: 20 21 The federal claims, Your Honor. All right. Thank you very much. Cameron Kistler for plaintiffs. In the United States against the Knights of the Ku 22 Klux Klan, Judge Wisdom observes that characterization 23 assassination, just as much as threats of violence, is a tool 24 of intimidation. 25 The defendants here have engaged in character Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 19 of 46 PageID# 461 19 1 assassination. 2 report specifically alleges that the United States Attorney in 3 Virginia has done nothing about the felonies committed by the 4 433 aliens registering in Prince William County alone. 5 As just one example, the first Alien Invasion The reader is then directed to an appendix containing 6 the names of the alien voters. 7 that list. 8 felon. 9 Plaintiff Freeman is named on So that's directly accusing Ms. Freeman of being a That accusation is false. Ms. Freeman is a United 10 States citizen. 11 complaint. 12 their accusations were false, but they published them anyway. 13 And that's just of the examples set out in the The complaint alleges that the defendants knew that The complaint further alleges that defendants hurled 14 those false accusations with the precise purpose of deterring 15 political participation. 16 assertions, but they cannot ignore them on a motion to dismiss. 17 THE COURT: Defendants may disagree with those Well, do you agree that I have the right 18 to look at the actual two publications, Alien Invasion I and 19 II, and look for myself as to what they say and what they don't 20 say regardless of what the complaint says? 21 MR. KISTLER: 22 THE COURT: 23 MR. KISTLER: 24 25 Absolutely. Even at a 12(b)(6)? Absolutely, Your Honor, and we hope you do. THE COURT: Okay. Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 20 of 46 PageID# 462 20 1 2 MR. KISTLER: If it's okay with the Court, I will begin with the Voting Rights Act, and then I will switch to -- 3 THE COURT: Sure, go ahead, that's fine. 4 MR. KISTLER: So, the Voting Rights Act, as Your 5 Honor pointed out, the plain text of it specifies it applies 6 whether the defendant is acting under color of law or 7 otherwise. The defendants don't dispute that. 8 Instead, they raise a non-sequitur. 9 section 11(b) can't be justified under the Fourteenth or 10 Fifteenth Amendments. 11 basis of section 11(b) is the Elections Clause. 12 seem to have an argument that it couldn't be justified under 13 the Elections Clause. 14 doesn't say: 15 That's irrelevant. They say that The constitutional And they don't They just say the statutory title The Elections Clause. I would point the Court to the Obamacare decision 16 where Chief Justice Roberts specifically notes that the 17 constitutionality of a statute does not depend on the recitals 18 that Congress makes when passing it. 19 the Court can come up with a reasonable constitutional basis. 20 It's just whether or not And I would point the Court to the legislative 21 history which explains why this is a reasonable use of the 22 Elections Clause and the necessary and proper clause. 23 24 25 THE COURT: Why hasn't there been a case brought by a private citizen under 11(b)? MR. KISTLER: I think there is a couple of factors, Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 21 of 46 PageID# 463 21 1 Your Honor. 2 same conditions that produce voter intimidation also make it 3 difficult to sue. 4 happens on the day of the election. 5 comes around to get into court, it's already too late. 6 I think first, unfortunately, I think the very I think that a lot of voter intimidation And so, by the time it And then it just -- the statute hasn't been used that 7 much. But the plain text of the statute says we can do this. 8 And so, I think we should be permitted to. 9 THE COURT: Okay. 10 MR. KISTLER: 11 THE COURT: 12 MR. KISTLER: I will move to intimidation now. Sure. Under our interpretation of the 13 statute, we must show one of two things. 14 acted to intimidate an objectively reasonable voter, or they 15 intended to intimidate a voter. 16 complaint. 17 Either the defendants We allege both in the I want to begin with the allegations of subjective 18 intent. 19 intended to intimidate the individuals named in the Alien 20 Invasion report. 21 defendants' knowing publications of false accusations of felony 22 behavior. 23 The complaint alleges that the defendants subjectively The basis for those allegations is the It is reasonable to infer that the defendants intend 24 the natural and probable consequences of the acts they 25 knowingly do. The natural and probable consequence of a Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 22 of 46 PageID# 464 22 1 multiyear campaign of falsely accusing someone of a felony for 2 voting is to discourage them from voting. 3 4 THE COURT: voting? 5 6 So the harm is the discouragement from MR. KISTLER: Well, we think there is three categories of harm, Your Honor. 7 I think there is the emotional harm that discourages 8 them from voting. I think there is the representational harm 9 of having the Internet -- having out on the Internet that a 10 former Department of Justice attorney who is on the President's 11 Voter Fraud Commission is saying you're a felon. 12 is a significant reputational harm that would be scary to 13 anyone. 14 I think that And I think the third harm is fear of physical harm. 15 I think it's unfortunate, but having someone's name 16 published -- name and address published on the Internet with 17 the label that you're a felon, is rightfully scary to most 18 people these days. 19 the Pizzagate incident or the unfortunate incident of Judge 20 Lefkow to realize that this can have serious consequences for 21 individuals. 22 I don't think you need to look farther than So I think our plaintiffs are reasonably frightened. 23 I would point the Court superficially to paragraph 49 of the 24 complaint which details why our plaintiffs are worried now. 25 And I think that for the purpose of a motion to Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 23 of 46 PageID# 465 23 1 dismiss, those allegations should be accepted as true because 2 they are plausible. 3 If the Court doesn't have -- 4 THE COURT: So, of course, there is the First 5 Amendment argument that they have identified the law, and they 6 have gotten from public records from the Commonwealth of 7 Virginia and collected them from the different registrars the 8 names that they ultimately published, and accurately -- they 9 didn't modify the information coming from the public records. 10 11 What effect does that have on your argument about the intent here? 12 MR. KISTLER: Well, I would argue -- well, first, 13 Your Honor, our objection isn't to the use of the public 14 records. Our objection is to the gloss they put on the public 15 records. And that's where the violation of the law occurs. 16 I would also note that their First Amendment 17 arguments, at least for the purpose of the federal statutory 18 claims, are waived. 19 Rights Act or Section 1985 are unconstitutional either facially 20 or as applied to them. 21 consider the First Amendment arguments. 22 They don't argue that either the Voting So I don't think the Court needs to And I would also note that simply because you have 23 public concerns about public issues, that doesn't license you 24 to break the law. 25 neighborhood. I can be worried about crime in my That doesn't mean that I can falsely accuse my Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 24 of 46 PageID# 466 24 1 neighbor of being an axe murderer in order to draw attention to 2 the issue. 3 THE COURT: Okay. 4 MR. KISTLER: If the Court doesn't have any more 5 questions about the Voting Rights Act, I will jump now to 6 section 1985. 7 THE COURT: 8 MR. KISTLER: 9 10 Please, go ahead. I will begin with the allegations of conspiracy, and then I will turn to what we have called the extratextual elements. 11 We believe we sufficiently allege a conspiracy. We 12 allege that they jointly wrote, published, and promoted the 13 defamatory reports. 14 a meeting of the minds to engage in conduct that we challenge 15 as intimidating. 16 That means there clearly was an agreement, And when the alleged conspirators tell the world that 17 they worked together on the reports, there is neither a legal 18 requirement nor a need to plead the times and places of the 19 meeting. 20 I know that they point to the Polidi case in their 21 response. I would first point out to Your Honor that we 22 believe the frame they give on their argument in the reply 23 brief is waived. 24 allege the conspiracy had the purpose of intimidating those and 25 other voters. Defendants' opening brief suggests that we That's at the top of page 21 of the opening Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 25 of 46 PageID# 467 25 1 2 brief. So they said, we allege the purpose of the conspiracy 3 in their opening briefing. 4 claiming something different. 5 They now in their reply brief are But regardless, if you look at the statute, the "for 6 the purpose language" only appears in the equal protection 7 clauses of the statute. 8 advocacy clauses. 9 It doesn't appear in the support and And even if you were to apply to the tests they say 10 that Polidi requires, we specifically allege they agreed to 11 publish a false report with the purpose of deterring voters, 12 providing support and advocacy, that's paragraphs 54, 60, and 13 62 of the complaint. 14 So I'll transition now to the elements, the other 15 elements of 1985(3). 16 THE COURT: 17 MR. KISTLER: Yeah, go ahead. Our view is that you are bound by two 18 Supreme Court cases on this issue. 19 controls this Court's disposition of the state action 20 requirement. 21 based animus argument. 22 We believe that Yarbrough And Kush controls the disposition of the class- Yarbrough holds that there is no state action 23 requirement for support or advocacy claims. 24 that there is not a state action requirement because the 25 support or advocacy clause was passed pursuant to the Elections Norman B. Linnell Yarbrough explains OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 26 of 46 PageID# 468 26 1 Clause, not the Fourteenth or Fifteenth Amendments. 2 century Supreme Court holdings remain binding until they are 3 expressly overturned. 4 And 19th The Fourth Circuit's dicta analyzing other clauses in 5 1985(3) don't give you a reason to move way from the express 6 holding of Yarbrough on that point. 7 On the class-based animus issue. I would point the 8 Court to Kush. Kush explains that the class-based animus 9 requirement in section 1985(3) comes from specific statutory 10 language related to equal protection. 11 the support or advocacy clause. 12 That language is not in And I will note that my friend pointed to the Bray 13 case in his opinion as sporting his view. 14 Court to footnote 13 of the Bray opinion where Justice Scalia 15 specifically reaffirms the centrality of the specific language 16 in the equal protection clause to give rise to the class-based 17 animus requirement. 18 I would point the And so, our belief is that you should follow those 19 cases rather than the dicta in cases that aren't analyzing the 20 support and advocacy clause. 21 for example, you would be concluding that the Thomas case 22 overturned the Kush case, which is not something I think the 23 Fourth Circuit intended. 24 25 If you were to follow that dicta, If Your Honor doesn't have any further questions, I'm happy to yield to my colleagues. Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 27 of 46 PageID# 469 27 1 2 THE COURT: No, I don't at this time. sir. 3 MR. KISTLER: 4 MR. LOPERFIDO: 5 Thank you, Thank you very much, Your Honor. Good afternoon, Your Honor. Jeff Loperfido on behalf of the plaintiffs. 6 THE COURT: All right. 7 MR. LOPERFIDO: I think it is telling that given the 8 opportunity to address the facts in this case, both attorneys 9 for the defendants pass on that opportunity. And that is a 10 consistent theme seen in their motion papers. 11 away from our facts and replacing them with their own. 12 They are running The facts of this case as alleged in the complaint, 13 and as Your Honor can read in the report, is that the 14 defendants announced to the world that they had discovered more 15 than 1,000, and I quote "aliens who registered to vote 16 illegally." 17 number had risen to 7,500 -- excuse me, 5,000 "illegal 18 registrants who had cast more than 7,000 ballots." 19 20 21 And by the publication of the second report, that The reports go on, as Your Honor astutely noted, to say that this is felonious conduct. And then what is a crucial point is defendants 22 attached the reports. They said, here are the felons that 23 we're talking about in these reports. 24 as a complete report with exhibits. 25 readers to look at the exhibits. That is to be understood The reports call for They did this knowingly, Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 28 of 46 PageID# 470 28 1 knowing that this was false. 2 That is the framework by which the Court must 3 consider this motion to dismiss. 4 the Court can read the reports and interpret them as you will, 5 but you are limited in some respects in the sense that we're at 6 a motion to dismiss standard, the Iqbal/Twombly standards 7 apply. 8 9 Your Honor is correct that When addressing whether a statement has a defamatory meaning, the plaintiffs, the one who is alleging defamation, is 10 entitled to every fair inference about the reasonable reading 11 of those reports. 12 The plain words of the reports are meant to be read 13 as plain words. And the Court and juries are meant to 14 understand the words as they would be understood by others. 15 Now I want to address the defendants' argument that 16 there is no specific statement in the reports that state that 17 these specific plaintiffs committed this specific crime on 18 so-and-so date. 19 We don't say that they do, and that's not the 20 standard in the Fourth Circuit. It's not the standard under 21 the Virginia Supreme Court. 22 decided by the Fourth Circuit and Carwile decided by the Fourth 23 Circuit which explicitly states they stand for the proposition 24 that a statement, a defamatory statement need not expressly be 25 made. We cite to the case Hatfill It can made by inference. It can be made by innuendo. Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 29 of 46 PageID# 471 29 1 And it matters not how artful the defendants, the defamers try 2 and disguise the meaning of their content. 3 Honor will be looking to as you look at the complaint and 4 review the report. 5 THE COURT: That is what Your So if you look at the Alien Invasion I 6 and II, it really focuses on the fact that the laws are not 7 being followed. 8 follow them, the registrars follow them, Congress won't follow 9 them, nobody is paying attention to the fact that there are 10 Laws are on the books, the governor won't people who are not entitled to vote who are voting. 11 The mechanism for arriving at the decision whether 12 somebody can vote or not is simply checking a box at the DMV. 13 That is absurd and should be stopped, and we need to do 14 something. 15 I think it is a very serious problem. 16 evidence that there are either 700 or 5,000 persons who the 17 Virginia Commonwealth says are not entitled to vote. 18 And these are public records I'm using. 19 And I'm going to alert the public to this problem, And I have got the Right? And then, of course, they go in Invasion 2 and they 20 say, we have been told there are some errors, and they take two 21 persons off the rolls. 22 Where is the intent that you're talking about that is 23 necessary to impute the defamation? 24 MR. LOPERFIDO: 25 Well, I think Your Honor captures that report well, correctly to a point. And that point, Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 30 of 46 PageID# 472 30 1 importantly, is what those records from the Virginia election 2 officials actually mean. 3 defendants were on notice that their representation, their 4 characterization of what those reports mean, was false. 5 And we have alleged credibly that You asked defense counsel, it's an appropriate 6 question, what responsibility did you have to confirm the 7 accuracy of your reports? 8 Supreme Court that states that there is a duty of care, a duty 9 of investigation for someone who is going to make a defamatory We have case law from the Virginia 10 statement that will clearly injure the person that it's about 11 to do some investigation. 12 We have alleged credibly in the complaint that the 13 defendants were aware that the registrar information relied on 14 did not establish that any particular voter was a non-citizen 15 and/or legally barred from voting. 16 We have credibly alleged that election officials 17 warned the defendants that they were drawing false conclusions 18 and risking accusing eligible voters of felony voter fraud. 19 That's exactly what they did here. 20 So they were warned that what they were about to do 21 was wrong, and then they did it. And yet they stand before 22 Your Honor and say it was reasonable for them to rely on the 23 statements of the election officials, their records -- their 24 records, not their statements. 25 what we think they mean. We can rely on the records for We're going to disregard their Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 31 of 46 PageID# 473 31 1 statements. 2 The case law is clear that there is an obligation to 3 do some research. 4 reporter commented negative things about a teacher, a public 5 school teacher, taking comments from parents and students and 6 other colleagues at the school. 7 The Richmond case, for example, a newspaper The Court said that a reasonably prudent reporter 8 would have spoken to people with other viewpoints to confirm, 9 verify, or supplement the negative factors that they were 10 doing. 11 They didn't do that, that is defamation. The same allegations, again, after the first 12 publication was made, media reports, we allege, media reports 13 highlighted the fact that there were flaws in the methodology. 14 Additional election officials identified the fact that there 15 were flaws in the methodology. 16 17 Those factors are actually in the reports acknowledging that what they are doing is not accurate. 18 On the point of the Richmond case, the Court made a 19 point of noting that the people with the other viewpoint were 20 readily available. 21 the people that they were defaming. 22 them. 23 registered to vote? 24 25 Defendants had the contact information of They could have called They could have said, are you a U.S. citizen? Have you Is this information accurate? Nothing in the report suggests that they did that, that they took any affirmative steps to confirm the defamatory Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 32 of 46 PageID# 474 32 1 statements that they were about to make. 2 THE COURT: Okay. 3 MR. LOPERFIDO: I also want to address an additional 4 point, speaking about going back to the point of innuendo and 5 inference. 6 Carwile case speaks to that issue. 7 Again, the Hatfill case speaks to that issue. The In both of those cases, especially Hatfill, you have 8 instances where the reporter is hedging their statements. They 9 are saying, well, we have to presume they are innocent until 10 they are proven guilty. 11 specifically, New York Times columnist Nicholas Kristof is 12 saying: 13 somebody find who is doing this and enforce the laws? 14 like defendants are saying here. 15 well, this can't be defamation, they are just reporting on an 16 ongoing investigation. 17 accusing this individual, Mr. Hatfill, of the anthrax mailings. 18 They have -- in the Hatfill case The FBI should do something about this. Why won't Just And the District Court said, They have been very clear about not And the Fourth Circuit said, no, the report, the 19 articles taken as a whole have a clear inference that Mr. 20 Hatfill is the anthrax mailer. 21 that decided on a motion to dismiss, it was overturned and sent 22 back for proceedings. 23 And that was a District Court Within that decision, Hatfill, and this is an 24 important point, not in response to something that appears in 25 the reply, there was no obligation for a defendant to state, Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 33 of 46 PageID# 475 33 1 excuse me, for a plaintiff to state that their name was 2 specifically identified within the content. 3 The Gazette case, the Virginia Supreme Court case, 4 speaks to that proposition, stating that the plaintiff alleging 5 defamation not need show that he was mentioned by name so long 6 as the publication was, in its description such as to lead 7 those who knew of him to understand that the article was about 8 him. 9 In that case, a reporter was commenting on a growing 10 concern about child abuse in the Alexandria area, and he 11 recounted a story that he heard from a police officer about a 12 child who had had an injury to his head that suggested perhaps 13 some foul play by the parents. 14 occurred, the child fell and, unfortunately, passed away. 15 When what in actuality had The news articles used a pseudonym for the child and 16 they didn't even know the parents' name, but the facts and 17 circumstances of the case made it apparent to the parents, to 18 friends of the parents, people who knew the parents, that this 19 was a case talking about them. 20 defaming them by calling them child abusers. 21 There was clearly no obligation that the names appear 22 in the reports, but they do. 23 attached as exhibits. 24 25 And that this reporter was You can see them in the reports Your Honor, I will just briefly address the anti-SLAPP argument. Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 34 of 46 PageID# 476 34 1 THE COURT: Go ahead. 2 MR. LOPERFIDO: And again, we address this in our 3 briefing. 4 whether this statute is retroactive, because it was passed 5 effective July 1, 2017, and the statements, the cause of action 6 in this occurred before that, the only court to address that 7 question in Virginia has stated that it is not applied 8 retroactively. 9 We note that the only court in Virginia to address Clearly Your Honor is not bound by that decision, but 10 the reasoning is instructive there. 11 offered no rebuttal, no case law to support their theory that 12 the cause of action accrual should somehow be tied to when the 13 plaintiffs who have been harmed filed their lawsuit as opposed 14 to what the statute actually says and what this Circuit Court 15 in Virginia decided. 16 And the defendants have Even if it were to apply, and we submit that it does 17 not, the outcome is the same. 18 states that statements are not protected if the defamer, the 19 defendants, had constructive knowledge of the falsity of the 20 statements or acted recklessly with regard to the falsity of 21 the statements. 22 The statute by its language We have alleged that. We have alleged, again, 23 election officials told them what they were doing was wrong. 24 They did it anyway. 25 We have cases to that point. The Fourth Circuit in, excuse me, Shaheen and the Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 35 of 46 PageID# 477 35 1 Western District of Virginia Court in Via say that an 2 insufficient or non-existent investigation can reach the level 3 of recklessness. 4 The Via case, for example, is interesting because in 5 that case you have a colleague dispute at work, and there is a 6 fire at the building, and the defamer learns from the fire 7 chief that there was no foul play and they had a likely cause 8 of the fire in the building. 9 tell a friend that he thinks that his colleague that he doesn't 10 And yet this person went on to go like was as arson and that's why the fire occurred. 11 Again, the person who is controlling the information 12 telling the defamer that what your conclusion is is wrong, the 13 defamer speaking anyway. 14 We alleged recklessness. We have alleged 15 constructive knowledge plausibly. 16 matter of public concern and First Amendment protections. 17 Again, defendants have not offered any case law that suggests 18 that falsely accusing somebody of felony voter fraud is 19 protected teach in any manner. 20 because it is a public concern. 21 within the First Amendment context. 22 23 And there are still the It is not protected peach It is not protected speech So if Your Honor has no questions, I will yield to Mr. Tepe. 24 THE COURT: 25 MR. TEPE: All right, thank you. Good afternoon, Your Honor. Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 36 of 46 PageID# 478 36 1 THE COURT: 2 MR. TEPE: 3 4 Good afternoon. Sean Tepe. I will be brief. You have been very generous with your time. I just have a couple of points to make which concern 5 the standing argument. 6 is out there that in situations like this, Your Honor does not 7 need to decide the standing of a particular plaintiff if there 8 is standing of the other plaintiffs there. 9 motion to dismiss stage -- 10 THE COURT: Your Honor correctly noted the law that We are at the Well, how similar do they have to be for 11 Bowsher to apply? 12 are targeted. 13 somebody from Ireland, somebody from England, somebody from 14 France, somebody from the Philippines. 15 broad undefined group of those who have been accused of 16 wrongdoing through this voter fraud. 17 I mean, in this case it's just aliens who It could be any alien. Right? It could be So you've got a very So you have got LULAC, which believes that it offends 18 and intimidates the Latino population, but we could be in here 19 with a hundred different groups making the same claim. 20 fair to say that? 21 MR. TEPE: Is it Well, I think what Your Honor -- correct 22 me if I am wrong, if I understand you correctly. 23 talked about, well, there is no standing here because this is 24 LULAC and this report is not targeting Latinos. 25 Counsel And we've never in our allegation, even though Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 37 of 46 PageID# 479 37 1 counsel said that we allege that these reports were targeting 2 Latinos, we don't actually allege that. 3 But it doesn't matter for the function of the 4 standing of LULAC. 5 Veasey v. Perry, which was a case in which LULAC had standing, 6 it was challenging a Texas voter ID law, essentially whether or 7 not photo IDs would be required for voting. 8 9 I will give you an example. Okay. In It wasn't a law challenging, you know, saying only Latinos have to have photo ID. It was a law of general 10 applicability. 11 able to say, you know, allege in court, and again a motion to 12 dismiss, this is going to impair our mission. 13 this case is to increase voter registration, but we can't 14 increase voter registration, we have to divert resources to 15 deal with this photo ID because we need to tell people, okay, 16 you're already registered, you need a photo ID, here is what 17 you need. 18 a photo ID. 19 However, LULAC, given its stated mission, was Oh, you don't have a photo ID? Our mission in This is how you get And so, that's how the organization was harmed, they 20 were being deterred -- or, excuse me, diverted in their 21 resources. 22 And that's essentially what is being alleged here, 23 Your Honor. There are two in particular concrete and 24 demonstrable injuries alleged. 25 ignore, and that's in paragraph 65, that the mission to advance One, that defendants simply Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 38 of 46 PageID# 480 38 1 Latino educational attainment is impaired by the fact that they 2 had to delay implementing an educational program. 3 grant for educational attainment in schools that had high 4 Latino populations. 5 because in the last election cycle they were dealing with, you 6 know, well, we've got to get people out to vote, and here we're 7 being discouraged. 8 invasion. 9 They had a They couldn't implement that program There is this notion, there is an alien And again, put in the context of Virginia -- 10 THE COURT: Well, even though it doesn't identify the 11 Latino group, and none of the those that were found to be 12 actually eligible to vote and are plaintiffs in the action, are 13 Latinos or members of LULAC. 14 think it is broad enough? 15 enough to cover that? 16 MR. TEPE: Your argument still holds, you You think the Texas case is broad Yes, yes. I mean, this is a report -- and 17 it's not just a report. 18 to Mr. Adams' statements in promoting the report, which we 19 believe are defamatory. 20 We also have allegations with respect So what we have here is a series of statements by 21 defendants saying, look, there is an alien invasion, there are 22 people, thousands of people who are committing voter fraud. 23 And there are people who are on the rolls that shouldn't be on 24 the rolls. 25 matter if you're Latino, or African-American, or white, or what This is being stated. And so it doesn't really Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 39 of 46 PageID# 481 39 1 have you, the situation is, wait, there is someone out there 2 saying that, you know, I might be voting incorrectly, there 3 might be some criminal liability. 4 5 Again, there are statements by Mr. Adams saying, you know, there should be criminal prosecutions here -- 6 THE COURT: What's wrong with telling the public that 7 if you're not a citizen, you can't vote? 8 sequences if you do so. 9 And that there are What fundamentally -- why is making that statement 10 going to discourage persons who are eligible to vote from 11 voting or becoming eligible to vote? 12 having. 13 MR. TEPE: That's the disconnect I'm But that's not what we've alleged. 14 alleged that they have gone beyond that. 15 report is Alien Invasion. 16 THE COURT: We've The title of the It's not, you know, there is some -- Well, there isn't any question that there 17 are some people on the lists who were ineligible to vote. 18 mean, that was determined by election officials as well, right? 19 And that was reported. 20 MR. TEPE: I Actually, Your Honor, I think that's why 21 this case needs to go into discovery and to trial, if 22 necessary, because that I don't think is what the Virginia 23 election officials would say. 24 an independent check of whether or not these folks are 25 citizens. They would say, we haven't done There may be some indicia that there might be a Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 40 of 46 PageID# 482 40 1 question, and that's why they'll do things like send mailers 2 out to double-check. 3 4 Defendants know this. And yet they stated that we have found non-citizens who are committing felonies. 5 As Your Honor asked before, isn't there some 6 obligation that you have to check that your statements are 7 accurate? 8 discovery. 9 And so, that's why this case needs to go into We at the motion to dismiss stage have alleged very 10 detailed, concrete allegations that fit all of the elements. 11 And a lot of times what defendants have done is rather than try 12 and challenge that, oh, there is a failure of pleading here, 13 they challenge the facts. 14 fine, we look forward to doing that in court. 15 And if they want to do that, that's And so, to take it back to I guess the standing 16 issue, Your Honor noted under these circumstances, the Court 17 may not need to actually decide LULAC's standing. 18 Honor decides to take this issue up at the motion to dismiss 19 stage, we have alleged in paragraphs 65 and 64 concrete, 20 demonstrable injuries to LULAC as an organization. 21 situations we're talking about impairments of their mission as 22 well as diversion of resources. 23 But if Your In both And those types of injuries have been held repeatedly 24 to constitute plausible injuries and satisfy organizational 25 standing. Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 41 of 46 PageID# 483 41 1 THE COURT: 2 MR. TEPE: 3 4 All right, thank you. There is one thing, I do apologize. I want to correct one statement, it's off the standing topic. But I believe defendants' counsel said that they put 5 out Alien Invasion I and then they, you know, found that a 6 couple of people were -- that they were incorrect and they are 7 actually citizens, and they put out Alien Invasion Number II 8 that had these people removed. 9 That's not actually the chain of events. As we 10 allege, and I think as the evidence will show, we believe 11 defendants were on notice of their misuse of these election 12 records even before they published Alien Invasion I. 13 published Alien Invasion I. 14 They Defendants become on even more notice that they are 15 misusing the election records through media reports and through 16 conversations and statements with Virginia election officials. 17 They publish a second report, which now has all four of our 18 individual plaintiffs named. 19 And then at the third time, essentially, they're 20 informed that, listen, here are a couple of people in 21 particular who are not non-citizens, they are citizens. 22 then what they've done is they've revised the second report to 23 take those names off. 24 our plaintiffs, they haven't taken off. 25 THE COURT: And But there are still names, including two Okay. Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 42 of 46 PageID# 484 42 1 MR. TEPE: Thank you, Your Honor. 2 THE COURT: All right, thank you. 3 All right, Mr. Lockerby. 4 MR. LOCKERBY: 5 THE COURT: 6 MR. LOCKERBY: Just briefly, Your Honor. Yes. With respect to the First Amendment, 7 defendants aren't saying that the Voting Rights Act or any of 8 these other claims are unconstitutional under the First 9 Amendment. 10 What we have said, and we said it on the very first 11 page, and the very first sentence, and the very first section 12 of the motion to dismiss, and also on the last page, is that if 13 applied to the conduct at issue in this case, plaintiffs' 14 allegations would deprive the defendants of their First 15 Amendment rights. 16 Now, with respect to each of the issues before the 17 Court. 18 mission is to ensure that non-citizens are registered to vote. 19 And we've addressed in our brief why the harm that LULAC has 20 alleged is insufficient as a matter of law. 21 With respect to standing, LULAC doesn't say that its With respect to the voting rights claims, we heard 22 from plaintiffs' counsel that this is voter intimidation, first 23 of all, because defendants supposedly engaged in character 24 assassination. 25 the report said that the U.S. Attorney has done nothing about There were two examples of that given. Norman B. Linnell OCR-USDC/EDVA One is (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 43 of 46 PageID# 485 43 1 prosecuting individuals who are registered to vote but not 2 eligible to vote. 3 That's a true statement. And if it assassinates 4 anyone's character, it would be the U.S. Attorney's, not these 5 plaintiffs. 6 The second alleged act of character assassination is 7 that one individual in Prince William County registered to 8 vote, in fact according to what we now know, apparently was a 9 citizen. 10 11 If the Prince William County records were inaccurate, that is not the defendants' fault. And the defendants are not in a position to verify 12 whether these voters are in fact citizens. 13 teeth to get the records in the first place, let alone to go 14 behind the information that state and local officials provided 15 to determine whether they're accurate. 16 It was like pulling And as plaintiffs' counsel has admitted, if there 17 were specific individuals identified who were then determined 18 to have been identified improperly, those links were removed. 19 There has also been -- there was the claim that these 20 publications were acts of voter intimidation and that 21 intimidation is why similar claims haven't been brought under 22 section 11(b) in the past. Certainly these voters were not 23 intimidated to bring suit. They have an army of lawyers 24 representing them. 25 And the issue under the Fifteenth Amendment is not Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 44 of 46 PageID# 486 44 1 constitutionality. 2 applies to non-state actors. 3 of authority is that this provision of the statute, which 4 derives its authority from the Fifteenth Amendment, similarly 5 cannot be applied to conduct solely by non-state actors. 6 It's whether the Fifteenth Amendment The answer is no. And the weight The public records, if they provide too much 7 information about individual voters, again, that's an issue for 8 the legislature. 9 Registration Act. Congress passed the National Voter Congress could certainly direct state and 10 local officials, or the Commonwealth could, to redact certain 11 information. 12 the plaintiffs have, if it is a legitimate one, is with the 13 government, not with our clients. 14 They haven't done that. And the complaint that Finally, before turning to defamation, with respect 15 to the Ku Klux Klan Act, this Court's precedents, including 16 Deressa, are clear that the meeting of the minds had to be 17 something other than merely publishing a report. 18 involve intent to deprive voters of their rights, their 19 constitutional right to vote. 20 It has to And there is no conflict between the animus 21 requirement that the Fourth Circuit and this Court have 22 articulated and Supreme Court precedents, such as Kush, which 23 dealt with a different clause of 1985, not this one. 24 25 And support or advocacy clause cases are clear that there has to be some animus and some intent to deprive the Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 45 of 46 PageID# 487 45 1 voters of their rights, not simply a general intent to publish 2 a report. 3 4 So, Mr. Davis has a few closing words on defamation and anti-SLAPP, and then we'll rest. 5 THE COURT: Thank you, sir. 6 MR. DAVIS: Very few, Your Honor, and definitely 7 8 9 closing. The point of beginning in the evaluation of the defamation are the articles themselves. The case law basically 10 says, you have got to read them as a whole. 11 them, there is rife with qualifications. 12 If you look at I would point out that counsel's cases that they have 13 cited, Hatfill, Gazette, Carwile, all of those cases, there is 14 sufficient facts that direct towards a particular plaintiff, 15 irrespective of whether that particular plaintiff is named. 16 17 And I would submit to Your Honor that that is a distinction that makes a significant difference in this case. 18 Thank you. 19 THE COURT: All right, thank you. 20 All right. Well, we'll continue to look at this for 21 a little bit and we'll get you out a decision not too long into 22 the future. 23 We're at the pleading stage, so I'm not going to 24 initiate any kind of discovery order or scheduling order at 25 this stage. Just give us a little bit of time to work through Norman B. Linnell OCR-USDC/EDVA (703)549-4626 Case 1:18-cv-00423-LO-IDD Document 62 Filed 06/28/18 Page 46 of 46 PageID# 488 46 1 it. 2 3 Very interesting issues. written pleadings as well as the advocacy here today. 4 So as I said, we'll get you out a decision as soon as 5 we can. 6 you all have a good weekend. 7 8 9 And I appreciate the And I thank you very much for coming in today. All right. And Thank you, counsel. -----------------------------------------------HEARING CONCLUDED 10 11 12 13 14 15 16 17 18 19 20 I certify that the foregoing is a true and accurate transcription of my stenographic notes. 21 22 23 24 /s/ Norman B. Linnell Norman B. Linnell, RPR, CM, VCE, FCRR 25 Norman B. Linnell OCR-USDC/EDVA (703)549-4626