Appeals Court Could Crack Down on Anti-Voting Group’s Dangerous Mass Voter Challenges

At a Tuesday hearing, a federal appeals court panel appeared open to protecting voters by reversing a lower court ruling that had dismissed a lawsuit targeting mass voter challenges. 

The lawsuit could make it harder for anti-voting groups to challenge the eligibility of large numbers of voters — and could even offer a rare chance to strengthen the Voting Rights Act (VRA) at a time when it’s under threat.

The pro-voting group Fair Fight alleged that the right-wing group True The Vote violated the Voting Rights Act (VRA) by challenging the eligibility of some 364,000 mostly minority voters ahead of Georgia’s 2021 Senate runoff election.  

True The Voter’s scheme, which used flawed data, constituted intimidation under Section 11(b) of the law, since it disproportionately targeted Black, brown and young voters, the lawsuit charged.

In January 2024, a federal district court judge found that True the Vote’s approach to mass voter challenges “verges on recklessness,” and that the data it used to challenge voters’ eligibility “utterly lacked reliability.” But because the court found that Fair Fight did not provide sufficient evidence that any voters were actually intimidated by True The Vote’s efforts enough to stay away from the polls, it ruled that it was not voter intimidation.

But during oral argument Tuesday, 11th Circuit Court of Appeals Judge Adalberto Jordan, an appointee of President Barack Obama, called that ruling an error. 

“I speak only for myself… but I think the district court committed legal error, not factual error, legal error,” Jordan said. 

“Think of a bank robber who goes into a bank with a ski mask and a gun and tells the bank teller, ‘Give me the money in your drawer!’ And then is thwarted by a security guard,” Jordan said. “That person has attempted to commit bank robbery, even though he has not stolen the money because he was stopped by a third party, an intermediary. I don’t know where the evidence leads in this case, and I don’t pretend to know — that’s for the district court to figure out. But I just think the district court didn’t get the right legal standard.”

Another member of the three-judge panel, Judge Federico Moreno, a George H.W. Bush appointee, seemed to agree with Jordan, adding that the district court got the ruling wrong by failing to conduct a separate analysis on one part of the law. 

The district court judge who issued the ruling “didn’t really do a separate analysis on the attempt to intimidate,” Moreno said. “He just wove the attempt to intimidate with the actual intimidation.”

Section 11(b) of the VRA aimed to ensure voters are protected from any sort of intimidation — like threats of violence, poll taxes and literacy tests. 

Georgia has one of the loosest voter challenge laws in the country – it allows anyone in the state to make an unlimited number of challenges to voter eligibility. In the leadup to the 2021 runoff election, True The Vote, according to Fair Fight’s lawsuit, recruited “citizen watchdogs” to watch voters return ballots and “offered a $1 million reward to incentivize its supporters to find evidence of ‘illegal voting.’”  

With Fair Fight’s appeal in this case, the 11th Circuit has a rare opportunity to strengthen the VRA. In recent years, several key U.S. Supreme Court decisions — including 2013’s Shelby County v. Holder, and 2021’s Brnovich v. Democratic National Committee — have weakened the landmark law, making it harder to bring voter suppression challenges to court. Section 11(b) is one of the VRA’s last remaining provisions establishing private enforcement of the VRA. 

“The importance here is not what happened… it’s what can happen the next time,” said Moreno. “To give guidance to different groups on different sides of the issues. What should be done or should not be done? What do we do about that? How do we clarify that?”

Fair Fight is represented by the Elias Law Group (ELG). ELG Firm Chair Marc Elias is the founder of Democracy Docket.