From Sidney Powell, Kenneth Chesebro and Jenna Ellis’s plea deals, John Eastman’s possible disbarment and two pending election subversion indictments amounting to 17 counts against former President Donald Trump, courts are slowly starting to hold Republican “Big Lie” architects accountable for their dangerous attempts to subvert democracy. But there are others who need to be held accountable as well: those who instilled doubt in our electoral process and those who attempted to interfere with voters’ right to vote.
Tomorrow, there will be a trial in a voter intimidation case that may not receive the fanfare and media attention of the aforementioned cases, but it will be just as important for holding anti-voting organizations and leaders accountable and protecting voters in future elections.
True the Vote launched the largest mass voter challenge in Georgia history.
In November 2020, Georgia handed Joe Biden the presidency and paved the way for two Democratic candidates to become the next U.S. senators from the Peach State and give Democrats control of the U.S. Senate. The only thing that stood in the way was a runoff election. With all eyes on Georgia, a right-wing group named True The Vote launched the largest voter challenge effort in Georgia history targeting the eligibility of more than 364,000 Georgians — many of whom were Black, brown or first-time voters.
Now, a lawsuit brought by Fair Fight and voters, alleging that True the Vote and its associates violated Section 11(b) of the Voting Rights Act (VRA) and intimidated voters is going to trial. Here is what you need to know.
What is True the Vote?
True the Vote (TTV) is a Texas-based right-wing group whose self-described mission is “to train citizens to protect election integrity at the polls.” It was founded by Catherine Engelbrecht who is credited with “becoming one of the earliest and most enthusiastic spreaders of ballot conspiracy theories.” TTV’s “research” was the basis for the disinformation film “2000 Mules” and the group’s claims of voter fraud have been causing harm since the early 2010s.
In 2022, Englebrecht and her associate Greg Phillips — who has promulgated disinformation about noncitizens voting in the 2016 elections — were held in contempt of court due to their noncompliance in a defamation lawsuit about targeting the founder of an election management software company.
TTV’s mass challenge scheme continued amidst the backdrop of threats, high tensions and cries from public officials to stop false claims of fraud.
After the 2020 election, right-wing groups and prominent Republican leaders worked tirelessly to instill doubt in the validity of Georgia’s election results and the security of the state’s elections. As a result, election officials were threatened and voters and poll workers were harassed and wrongly accused of fraud. Tensions came to an all-time high when it was finally time for Georgia to certify its election results. Trump continuously stoked fears by alleging massive fraud in the state.
In December 2020, one prominent Republican election official made a plea to stop Trump and others from continuing to instill doubt in the electoral process and put election officials lives at risk:
Someone’s going to get hurt, someone’s going to get shot, someone’s going to get killed.Gabriel Sterling (R), Chief Operating Officer in the Office of the Georgia Secretary of State
Nevertheless, as the plaintiffs put it, TTV continued to “feed this frenzy” and promulgate false accusations of voter fraud.
According to court filings, the group launched “Validate the Vote” to overturn the results of the 2020 election. When TTV failed to overturn the presidential election results, Validate the Vote morphed into “Validate the Vote Georgia,” an operation that “offered a $1 million ‘bounty’ for reports of voter fraud…recruited Navy SEALS to confront voters and poll workers… and, with the help of individual Defendants and state Republican Party officials, launched the largest mass challenge effort in Georgia history, targeting hundreds of thousands of voters just two weeks before the January 2021 runoff election.”
To challenge hundreds of thousands of voters’ registrations, TTV assumed that individuals were unlawfully registered if voters had filed a request to forward their mail to a different address in the U.S. Postal Service’s National Change of Address database. TTV used this information — despite it being unreliable — to challenge hundreds of thousands of voters’ registrations. As a result, eligible voters discovered that their voter registrations were at risk due to these challenges, which were made possible due to Georgia’s lenient voter challenge law and exacerbated by the 2021 omnibus voter suppression law, Senate Bill 202.
In many ways, TTV’s blueprint for incentivizing and empowering citizen vigilantes laid the groundwork for the excessive vigilantism we see targeting voters today.
In response to TTV’s actions in the lead up to the 2021 Senate runoff, Fair Fight and voters filed a lawsuit alleging that TTV’s mass challenge scheme intimidated voters.
On Dec. 23, 2020, Fair Fight and voters filed a lawsuit against TTV, its founder and other associates alleging that TTV’s mass challenge scheme intimidated voters and therefore violated Section 11(b) of the VRA.
Enacted in 1965, Section 11(b) of the VRA outlaws any act that is likely to intimidate voters: “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.” The provision extends the same protections to anyone “urging or aiding” another individual to vote.
This protection does not require proving intent or racial motivation, making it a useful legal tool in fighting voter intimidation and vigilantism.
The complaint alleges that TTV’s mass challenge effort that included a $1 million bounty for evidence of illegal voting was objectively likely to intimidate voters, violating Section 11(b) of the VRA.
TTV’s actions had real impacts on voters.
Voter challenges are harmful: they encourage citizens to question their neighbors, create distrust in our elections and, most of all, unfairly target eligible voters. Throughout the case, voters whose registrations were challenged have shared heartbreaking testimony:
I am a Black voter and a veteran, and I grew up in an era of segregation when it was common for public officials and certain members of our communities to make it difficult for us to vote. Having to deal with these kinds of obstacles still today is both discouraging and aggravating, and makes it seem like we should just give up.
Another voter explained how her challenged registration made her feel:
When I was challenged, I was the only Hispanic there voting. And I noticed that the only other race besides white who I believed was also challenged — she casted a paper ballot — was Asian…. I connected the two, and I thought that people of color were being challenged. And that made me feel intimidated.
The plaintiffs requested temporary relief, but were denied.
On Jan. 1, 2021 — just four days before the runoff — a judge denied the plaintiffs’ request to temporarily halt the defendants’ voter challenge, poll watching, election observation and other activities that could intimidate voters. In denying the plaintiffs request, the judge wrote that his order in no way ended the case:
While this Court denies Plaintiffs’ motion for injunctive relief, this case is not yet over. As this Court has expressed clearly, an eleventh-hour challenge to the franchise of more than 360,000 Georgians is suspect. So too is the manner in which Defendants mounted their challenges. The Court will not abide attempts to sidestep federal law to disenfranchise voters. Nor will it tolerate actors brandishing these voter challenges to intimidate and diminish the franchise, for such acts diminish democracy itself. But the Court must rely on proper evidence and facts to determine whether these acts have in fact run afoul of federal law. The Court looks forward to seeing what evidence the Parties bring to bear.
In response to the lawsuit, TTV not only doubled down and defended its actions, but also countersued alleging that Fair Fight, an organization committed to fighting voter suppression and intimidation, was intimidating TTV. Luckily, the court did not buy this bad-faith argument and promptly dismissed TTV’s breathtaking counterclaims.
TTV is now defending its actions by arguing that Section 11(b) is unconstitutional.
TTV argues that these voter challenges do not intimidate voters, as their actions are protected by the First Amendment and therefore Section 11(b) of the VRA is unconstitutional. The group also argues that if Section 11(b) is applied to their actions, lawful voters’ votes will be diluted, or worth less. This warped concept of vote dilution is an increasingly common theme in many recent conservative anti-voting lawsuits as a defense against the pro-voting plaintiffs’ cases.
In October 2022, TTV submitted what is known as a “notice of constitutional challenge of statute.” When a party challenges the constitutionality of a federal law — in this case Section 11(b) of the VRA — they must submit a notice to the court stating that they are challenging the constitutionality of the law. At that point, the Department of Justice may choose to get involved.
Due to TTV’s novel and radical legal argument, the DOJ intervened and the parties filed additional briefs during the summary judgment phase.
In December 2022, the DOJ intervened in the case to clarify that in its view, Section 11(b) is absolutely constitutional. In January 2023, the DOJ told the court that it should reject the defendants’ arguments about 11(b)’s constitutionality. ” The DOJ asserts that TTV’s arguments “have no basis in its text, history, or precedent” and states that TTV’s actions are not protected by the First Amendment. ”
The DOJ contends that 11(b) has “an unlimited reach, covering all people who are intimidated, threatened, or coerced…regardless of whether they were specifically targeted.” The department also refuted TTV’s outrageous vote dilution arguments, writing that “determining whether someone has intimidated, threatened, or coerced a voter has no relation to…any…circumstance that could give rise to an affirmative vote dilution claim.”
The plaintiffs also refute TTV’s claims about 11(b)’s constitutionality. In their January 2023 brief, the plaintiffs echo the DOJ’s argument that Section 11(b) should be interpreted broadly to cover voter challenges as potentially unlawful voter intimidation. They also agree that vote dilution cannot be used as a defense since “any interest individuals maintain in preventing the dilution of their own voting power…cannot possibly justify the intimidation of eligible voters whose ballots are entirely lawful.”
While a few claims were resolved, a majority of the case is going to trial.
In March, the judge ruled that most claims would proceed to trial after finding that the facts were disputed by the different sides and summary judgment could not be issued on all of the claims, mainly the Section 11(b) voter intimidation claims. However, the court ultimately rejected TTV’s vote dilution claims and its argument that Section 11(b) was unconstitutionally vague.
At trial, the following questions will be addressed:
- Whether the defendants violated Section 11(b) of the VRA, by intimidating, threatening or coercing, or attempting to intimidate, threaten, or coerce, any person for voting or attempting to vote.
- If the defendants’ conduct did violate Section 11(b) of the VRA of 1965, whether applying Section 11(b) to the defendants’ actions would violate their First Amendment right to free speech.
- If the defendants’ conduct did violate Section 11(b) of the VRA of 1965, whether applying Section 11(b) against them would violate their First Amendment right to petition.
The trial is expected to last 10 days. After that, it will be up to the judge to determine what, if any, accountability TTV will face.
This case will determine if TTV will have to take any sort of responsibility for putting hundreds of thousands of voters’ registrations at risk. Fortunately, many of the challenges were not successful, but that does not detract from the harm caused. As the voters’ testimony illustrates, voter challenges have the impact of intimidating voters and making them question if voting is even worth it.
Some voters may choose to not vote again out of fear of being targeted and some may not even know their registration was challenged. Voter challenges disproportionately target communities of color and are harmful to our social fabric.
Unfortunately in the wake of S.B. 202’s passage, Georgia’s voter challenge problem is only growing. After its passage in 2021, over 89,000 voters’ registrations have been challenged. With election vigilantism on the rise, Section 11(b) provides a helpful tool in holding those who engage in intimidation accountable. When armed vigilantes showed up to monitor Arizona drop boxes in 2022, 11(b) was used to stop them. When conspiracy theorists sent racist robocalls to voters, a federal judge ruled that the scheme violated 11(b) and other state and federal laws. If this lawsuit is successful, this case can also serve as an example of accountability and deterrence from engaging in voter intimidation in the future.