Case 1:19-cv-00920-DNH-CFH Document 47-1 Filed 09/12/19 Page 1 of 20

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
NEW YORK IMMIGRATION
COALITION, COMMON CAUSE/NEW
YORK, COMMUNITY VOICES HEARD,
CITIZEN ACTION OF NEW YORK, and
JENIFER BENN,
Plaintiffs,
Case No. 1:19-cv-00920-DNH-CFH

v.
RENSSELAER COUNTY BOARD OF
ELECTIONS; JASON SCHOFIELD in his
official capacity as Commissioner of the
Rensselaer County Board of Elections;
STEVEN MCLAUGHLIN, in his official
capacity as Rensselaer County Executive;
FRANK MEROLA, in his official capacity
as Rensselaer County Clerk; and MICHAEL
STAMMEL, in his official capacity as
Chairperson of the Rensselaer County
Legislature,
Defendants.

BRIEF OF CAMPAIGN LEGAL CENTER AS AMICUS CURIAE IN OPPOSITION TO
DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ COMPLAINT

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TABLE OF CONTENTS
STATEMENT OF INTEREST………………………………………………………1
SUMMARY OF ARGUMENT…………………………………………….......…….1
ARGUMENT……………………………………………………………………….…2
I.

THE PLAIN TEXT OF SECTION 11(B) AND A PROPER
UNDERSTANDING
OF
ITS
CONSTITUTIONAL
BASIS
DEMONSTRATE THAT IT DOES NOT REQUIRE A SHOWING OF
SPECIFIC INTENT………………………………………………………2
A. The Constitutional Authority of Section 11(b) is the Elections
Clause………………………………………………………………….3
B. Section 11(b) Requires No Showing of Specific Interest………...…5

II.

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 SECTION 11(b)……………………………….…..9
A. Defendants’ Alleged Conduct Falls Within the Commonly
Understood Meaning of the Term “Intimidation” Under Section
11(b)……………………………………………………………………9
B. Defendants’ Alleged Conduct is a Modern Form of the Acts that
Section 11(b) Sought to Prohibit…………………………………….14

CONCLUSION………………………………………………………………………16

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STATEMENT OF INTEREST
Amicus curiae Campaign Legal Center (“CLC”) is a nonpartisan, nonprofit organization
that has been working for over fifteen years to advance democracy through law. Amicus CLC has
litigated many voting rights cases in federal courts, including the recent United States Supreme
Court case Rucho v. Common Cause, No. 18-422 (2019); as counsel for Plaintiffs in Veasey v.
Abbott, 830 F.3d 216 (5th Cir. 2016) (challenging Texas’s photo ID law); and as counsel for
Plaintiffs in LULAC v. Reagan, No. 2:17-cv-04102 (D. Ariz. 2017) (challenging Arizona’s dual
registration system). CLC has filed amicus curiae briefs in every major voting rights case before
the Supreme Court in recent years, including Cooper v. Harris, 137 S.Ct. 1455 (2017), Evenwel v.
Abbott, 136 S. Ct. 1120 (2016), and Shelby County v. Holder, 133 S. Ct. 2612 (2013). CLC also
filed amicus curiae briefs in two recent District Court cases involving claims of voter intimidation
brought under 42 U.S.C. § 1985(3) and Section 11(b) of the Voting Rights Act of 1965: Cockrum
v. Donald J. Trump for President, No. 3:18-cv-00484-HEH (E.D. Va. 2018) and LULAC v. Public
Interest Legal Foundation, No. 1:18-cv-00423-LO-IDD (E.D. Va. 2018). In sum, amicus CLC has
a demonstrated interest in the protection of voting rights and the health of our representative
democracy, and the interpretation and application of voter intimidation laws, including Section
11(b) of the Voting Rights Act of 1965, 52 U.S.C. § 10307(b).
SUMMARY OF ARGUMENT
Amicus CLC submits this brief to clarify several issues related to interpreting and applying
Section 11(b) of the Voting Rights Act of 1965, 52 U.S.C. § 10307(b) (hereinafter, “Section
11(b).”) CLC also seeks to explain why, based on the plain meaning of the terms “intimidate” and
“intimidation” in Section 11(b), as well as relevant case law and legislative history, Defendants’

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alleged conduct (as pled) fits squarely within the scope of that provision. Thus, Plaintiffs’
Complaint states a colorable claim under Section 11(b).
Amicus CLC notes that, in the Memorandum in Support of Defendants’ Motion to Dismiss,
(“Defs. MTD”), Defendants erroneously state that claims under Section 11(b) require a showing
of specific intent, ECF No. 34-3 at 17. A proper reading of the text and legislative history of
Section 11(b) show that claims brought under that provision do not require such a showing of
specific intent and are not limited in the manner that Defendants contend.
Defendants also assert an unreasonably narrow definition of “intimidation” that does not
comport with the text and history of Section 11(b). The question of the meaning of the terms
“intimidate” and “intimidation” is plainly before this Court; amicus CLC examines 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 assesses the application of these terms to
Defendants’ alleged conduct. Amicus CLC also alerts the Court to historical examples of voter
intimidation that occurred during the era in which Congress enacted Section 11(b) and show that
Defendants’ alleged conduct falls squarely within the category of modern forms of actions that
Section 11(b) sought to prohibit.
In sum, this brief seeks to explain the correct resolution of several significant interpretive
issues relating to Section 11(b) and suggests that the Plaintiffs have pled sufficient facts, such that
their claims should survive Defendants’ Motion to Dismiss brought under Rule 12(b)(6).
ARGUMENT
I.

THE PLAIN TEXT OF SECTION 11(B) AND A PROPER UNDERSTANDING
OF ITS CONSTITUTIONAL BASIS DEMONSTRATE THAT IT DOES NOT
REQUIRE A SHOWING OF SPECIFIC INTENT

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Defendants assert that Section 11(b) requires a showing of specific intent to intimidate.
Defs. MTD at 17. This proposition is demonstrably incorrect. The plain text of the provision, an
understanding of the constitutional basis for the provision, applicable Supreme Court precedent,
and the underlying congressional purpose make clear that Section 11(b) applies to conduct that has
the effect of intimidating, threatening, or coercing eligible voters.
“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, the text of Section 11(b) contains no reference to any specific
intent requirement, nor does it penalize conduct under any other explicit intent standard, such as
conduct undertaken “knowingly” or “recklessly.” Defendants thus face a high bar for arguing for
imposing an unwritten specific intent standard where none exists based on the clear instructions of
Congress. But our inquiry does not stop with the plain text; this brief lays out the constitutional
authority underpinning Section 11(b) and explains how that authority, along with the congressional
record and judicial precedent, support Plaintiffs’ position that Section 11(b) can be invoked
without a showing of specific intent.
A. The Constitutional Authority for Section 11(b) is the Elections Clause
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 Section 11(b) specifically invokes “article I, section 4, and the implied power of Congress to

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protect Federal elections against corrupt influences[.]” H.R. Rep. No. 89-439, at 30 (1965),
reprinted in 1965 U.S.C.C.A.N. 2462.1
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 state: “[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 on the face of the Elections Clause alone, it is clear that any exercise of power thereunder
may regulate the time, place, and manner of elections. Regulating voter intimidation falls squarely
within regulating the “manner” of an election.
Supreme Court precedent confirms that the Elections Clause empowers Congress to
combat voter intimidation by regulating conduct related to the “manner” of an election. More than
130 years ago, the Supreme Court explicitly relied on the Elections Clause to conclude 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] . . . 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:
                                                            
1

See also “The [VRA] is designed primarily to enforce the 15th [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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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.
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). “‘Time,
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 preventing
voter intimidation.
B. Section 11(b) Requires No Showing of Specific Intent
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 Section 11(b) indicates that claimants must demonstrate that a defendant
intended that his actions intimidate voters. To the contrary, both the plain language and legislative
history of the statute indicate that no showing of subjective intent is necessary to sustain a Section
11(b) claim.

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When analyzing the text of Section 11(b), it is noteworthy that an antecedent to Section
11(b), Section 131(b) of the 1957 Civil Rights Act, 52 U.S.C. § 10101(b), requires 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 Section 11(b) in certain ways, this
language differs in several critical respects. Most importantly, unlike Section 131(b), Section 11(b)
does not contain the phrase “for the purpose of,” emphasized above. Instead, Section 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’s omission of the phrase “for the purpose of” from Section 11(b) was purposeful.
Before the passage of the VRA, the Department of Justice’s prosecutions of voter intimidation
were routinely frustrated by the fact that Section 131(b) required claimants to prove something
about the state of mind of the defendants. See Gilda R. Daniels, Voter Deception, 43 Ind. L. Rev.
343, 360–61 (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, such as Section 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
“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
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of the purpose requirement has rendered the statute largely ineffective.” Id. at 12. In contrast,
Katzenbach believed Section 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 [Section § 131(b)].” Id. Katzenbach explained that, instead of relying on a showing
of intent, under Section 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
carefully worded Section 11(b) to ensure that plaintiffs would not have to prove defendants’
subjective intent. See id. at 205 (“The most logical reading of [S]ection 11(b), in light of its
legislative history and its textual changes from [S]ection 131(b), is that it reaches any objectively
intimidating conduct without regard to the defendant’s intent.”).
Defendants’ Motion cites several cases to support their claim that Section 11(b) requires
proof of specific intent, all of which are inapposite for various reasons.
Defendants cite Olagues v. Russoniello, 770 F.3d 791, 802 (9th Cir. 1985), for the
proposition that a showing of subjective intent is “an essential element” of a claim under Section
11(b). Olagues, which was reheard en banc, 797 F.2d 1511 (9th Cir. 1986), and then vacated by
the Supreme Court on mootness grounds, 484 U.S. 806 (1987), has no precedential value. See
County of Los Angeles v. Davis, 440 U.S. 625, 634 n. 6 (1979) (“Of necessity, our decision

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‘vacating the judgment of the Court of Appeals deprives that court’s opinion of precedential effect
. . . .’”). Moreover, the Ninth Circuit’s Olagues decision relies on the Fifth Circuit’s interpretation
of the intent requirement in Section 131(b) in United States v. McLeod, 385 F.2d 734 (5th Cir.
1967), which does not address Section 11(b) at all. By relying on McLeod, the Olagues court
erroneously conflated Sections 11(b) and 131(b), mistakenly asserting in a cursory manner that
both provisions require a showing of subjective intent to intimidate, with no acknowledgement of
the material differences between plain language of both statutes. 797 F.2d 1511, 1522 (9th Cir.
1986).2
Similarly, in Dekom v. Nassau County, the Second Circuit erroneously quoted the intent
language of Section 131(b) analyzing a claim brought under Section 11(b). 595 Fed. Appx. 12, 1415 (2d Cir. 2014). As described above, there are material differences between the language of
Sections 11(b) and 131(b), and the court in Dekom failed to distinguish the two statutes.
Defendants’ reliance on United States v. Leflore County, 371 F.2d 368 (5th Cir. 1967) is
also misplaced, as that case’s discussion of subjective intent also occurred in the context of a
Section 131(b) claim. Id. at 371. Indeed, the court in Leflore County noted that it “express[ed]
[t]here no view as to whether the burden placed upon the Government would differ, and if so in
what respects, under § 11 of the Voting Rights Act of 1965[.]” Id. at 371 n. 4.
Finally, Defendants’ citation to Willingham v. County of Albany, 593 F. Supp. 2d 446, 463
(N.D.N.Y. 2006), in this context is particularly confusing. In Willingham, this Court rejected

                                                            
2

Defendants also cite to Pincham v. Illinois Judicial Inquiry Bd., 681 F. Supp. 1309, 1317 (N.D.
Ill. 1988), aff’d, 872 F.2d 1341 (7th Cir. 1989), which relies on the McLeod and Olagues courts’
incorrect interpretation of 11(b). The interpretation of Section 11(b) in Olagues is unfortunate, but
this Court is not bound by it or its progeny and need not repeat its errors. Instead, the Court should
look to the plain language of the text and the congressional intent behind Section 11(b) to correctly
interpret the provision to not require proof of specific intent.
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Defendants’ position that Section 11(b) requires a showing of specific intent, noting that, in
Section 11(b) claims, “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.” Id. at 462.
II.

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 SECTION
11(b).
In their Complaint, Plaintiffs allege that “Rensselaer County officials have pledged to turn

over voter registration data of United States citizens to U.S. Immigration and Customs
Enforcement (ICE) on an immediate an ongoing basis, in flagrant disregard of both federal and
state laws prohibiting such disclosures.” Compl., ECF No. 1, at ¶ 1; see also id. at ¶¶ 53–56.
These alleged disclosures include the names and addresses of all individuals who register to vote
at the Department of Motor Vehicles in Rensselaer County. Id. at ¶ 2. Defendants respond that
they have taken no action that constitutes an “act of intimidation” cognizable under the VRA, and
therefore Plaintiffs’ Complaint fails to allege a violation of the VRA. Defs. Mot. to Dis. at 17.
The Defendants’ alleged conduct is the type of serious intimidation that Section 11(b)
proscribes. To understand that the alleged conduct constitutes intimidation, one must discern the
meaning of the term “intimidation” as used in the statute. 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 as alleged in the
Plaintiffs’ Complaint fall squarely within the conduct prohibited by Section 11(b).
A. Defendants’ Alleged Conduct Falls Within the Commonly Understood Meaning of
the Term “Intimidation” Under Section 11(b).
With respect to the natural and ordinary interpretation of “intimidation” in Section 11(b),
this Court may draw guidance from at least four sources: at the most basic level, dictionary

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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 the 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 Section 11(b).
Beginning with the most basic understanding of the term “intimidate,” in the mid-1960’s,
Webster’s Dictionary defined the word “intimidate” as “to frighten; to make timid or fearful; to
inspire or affect with fear; to deter, as by threats.” See U.S. v. Harvey, 250 F.Supp. 219, 236 (E.D.
La. 1966) (quoting Webster’s Dictionary); 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, federal courts have interpreted the term “intimidation”
in the context of Section 11(b) and have made 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. See, e.g., LULAC v. PILF, 2018 WL 3848404, at *1-4 (E.D. Va. Aug.
13, 2018) (finding that the publication of a list of individuals’ names and personal information in
“a report condemning felonious voter registration in a clear effort to subject the named individuals
to public opprobrium” was sufficient to show a finding of intimidation); Damon v. Hukowitz, 964
F. Supp. 2d 120, 149 (D. Mass. 2013) (“Intimidation means putting a person in fear for the purpose
of compelling or deterring his or conduct.”).

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Statutes other than Section 11(b) also use the term “intimidation”, and the definition of that
term in cases dealing with those statutes is instructive insofar as they provide guidance on the types
of conduct that can be considered intimidating. In interpreting the term “intimidate” in the context
of Section 131(b) of the Civil Rights Act, 52 U.S.C. § 10101(b), federal courts have found that
“intimidation” goes far beyond simple threats of physical violence. See U.S. v. Beaty, 288 F.2d
653, 656 (6th Cir. 1961) (“[T]hreats, intimidation, or coercion may take on [many] forms.”); U.S.
v. Bruce, 353 F.2d 474, 476-77 (5th Cir. 1965) (finding that declining to renew a teacher’s contract
“as a means of coercing or intimidating the teacher as to her right to vote” was sufficient to show
intimidation); People v. Horelick, 424 F.2d 697, 703 (2d Cir. 1970) (Noting that 18 U.S.C. § 245(b)
is “[u]nlike the voting rights acts” (including Section 131(b)), in that Section 245(b) requires “force
or threat of force.”); see also Cady & Glazer, supra, at 193–202 (summarizing several cases where
courts interpreted the term “intimidate” or “intimidation” with respect to civil rights).
Another similar use of the term can be found in 42 U.S.C. § 1985(w), 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-cv-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.

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Similarly, 42 U.S.C. § 3617 makes it unlawful to “intimidate, threaten, or interfere with” a
person for enjoying or exercising fair housing rights. In cases involving this statute, courts have
held that plaintiffs stated claims for intimidation even where the defendants’ conduct did not
include physical violence. See, e.g., 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); Halprin v. Prairie
Single Family Homes of Dearborn Park Ass’n, 338 F.3d 327, 330 (7th Cir. 2004).
Cases involving state statutes prohibiting electoral intimidation can also be useful in this
context—particularly those with fact patterns 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 the recipients that if they voted in the
election, their personal information would be collected by the government and made available to
organizations that were “against immigration.” 673 F.3d 1259, 1261 (9th Cir. 2012). That court
found that, for purposes of California’s state voter intimidation statute, the word “intimidation” 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.
The U.S. Department of Justice has defined intimidation as conduct designed to “deter or
influence voting activity through threats to deprive voters of something they already have, such as
jobs, government benefits, or in extreme cases, their personal safety.” Craig C. Donsanto & Nancy
L. Simmons, Public Integrity Section, U.S. Dep’t of Justice, Federal Prosecution of Election
Offenses

54

(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 is a variety of ways to intimidate individuals with respect to their civil rights. Regarding the

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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 publication or
release of individuals’ identities, especially in connection with alleged illegal activity (such as the
implication that they are illegally registering to vote as non-citizens), has already been found to
constitute intimidation for purposes of claims under Section 11(b). See LULAC v. PILF, 2018 WL
3848404, at *1-4 (E.D. Va. Aug. 13, 2018).
Indeed, the State of New York has already indicated that information provided to the
Department of Motor Vehicles (“DMV”) is highly sensitive, and should not be disclosed to
immigration enforcement agencies. On July 17, 2019, Governor Andrew Cuomo signed the
“Driver’s License Access and Privacy Act” (also called the “Green Light Act”), Ch. 37, Laws of
2019, into law. The Green Light Act, which comes into effect on December 14, 2019, prohibits
disclosure by the DMV of “[a]ny portion of any record retained by the commissioner in relation
to a non-commercial driver’s license or learner’s permit application or renewal application that
contains the photo image or [other personally identifying information] of the holder of, or applicant
for, such license or permit” or the original identity and residency documents submitted with such
an application—except to the applicant or pursuant to a court order. N.Y. S1747-B. Additionally,
the Green Light Act specifically prohibits the DMV from disclosing or making accessible any
records to an agency that primarily enforces immigration law (such as ICE) except pursuant to a

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court order. Id. Moreover, the National Voter Registration Act of 1993 (“NVRA”) limits the use
of information gathered by state driver’s license agencies through voter registration applications
for any purpose other than voter registration. 52 U.S.C. § 20504(b). The NVRA specifically
designates the fact that a particular citizen registered to vote through an agency such as the DMV
as confidential information, and prohibits the disclosure of that fact. See 52 U.S.C. §§
20504(c)(2)(D)(iii); 20507(a)(6).
Plaintiffs have pled colorable claims of intimidation under Section 11(b) by the disclosure
of voters’ registration information to immigration enforcement officials in violation of New York
and federal law.
B. Defendants’ Alleged Conduct is a Modern Form of the Acts that Section 11(b) Sought
to Prohibit.
At the time Congress enacted Section 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. See, 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
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 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, she was arrested on a charge of passing a bad
check for $5.15. Id. at 23. In another case, a retired schoolteacher 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 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

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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
addressed.
The Defendants’ alleged conduct is a modern form of such intimidating acts. The alleged
release of voter registration information to immigration enforcement agencies such as ICE could,
if proven, dissuade individuals from exercising their right to vote in an effort to avoid drawing
scrutiny from ICE. The dissemination of Plaintiffs’ voter registration information to ICE is
arguably more egregious given the New York Green Light Act and National Voter Registration
Act’s prohibitions on the disclosure of that information, and ICE’s recent and highly publicized
wrongful arrests and detentions of U.S. citizens based on incomplete government records and bad
data. See Joel Rubin & Paige St. John, Must Reads: ICE held an American man in custody for
1,273 days. He’s not the only one who had to prove his citizenship, L.A. Times, Apr. 27, 2018,
available at https://www.latimes.com/local/lanow/la-me-citizens-ice-20180427-htmlstory.html
(describing ICE’s recent history of wrongful arrests of U.S. Citizens); Meagan Flynn, U.S. citizen
freed after nearly a month in immigration custody, family says, Washington Post, Jul. 24, 2019,
available

at

https://www.washingtonpost.com/nation/2019/07/23/francisco-erwin-galicia-ice-

cpb-us-citizen-detained-texas/ (describing a recent incident when ICE detained a U.S. citizen for
over a month).
CONCLUSION
For the foregoing reasons, the court should deny the Defendants’ motion to dismiss.
Dated this 12th day of September, 2019.

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Respectfully submitted,
/s/ Seth H. Agata______
Seth H. Agata
Jeremy M. Creelan
Jenner & Block LLP
919 Third Avenue, 37th Floor
New York, NY 10022
Telephone: (212) 891-1648
Fax: (212) 891-1699
sagata@jenner.com
jcreelan@jenner.com

J. Gerald Hebert*
Jonathan Diaz (N.Y. Bar No. 5525316)
Campaign Legal Center
1101 14th Street NW, Suite 400
Washington, DC 20005
Telephone: (202) 736-2200
Fax: (202) 736-2222
ghebert@campaignlegalcenter.org
jdiaz@campaignlegalcenter.org
ATTORNEYS FOR AMICUS CURIAE
CAMPAIGN LEGAL CENTER
*motion for admission pro hac vice forthcoming

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CERTIFICATE OF SERVICE
The foregoing Motion for Leave to File Amicus Curiae Brief, Proposed Order, and Brief
of Amicus Curiae Campaign Legal Center were filed this 12th day of September, 2019 through the
Court’s Electronic Filing System. I hereby certify that counsel for all parties will be served and
may obtain copies electronically through the operation of the Electronic Filing System.

/s/ Jonathan Diaz
Jonathan Diaz (NY Bar No. 5525316)

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