WASHINGTON, D.C. — On Tuesday, Jan. 17, the U.S. Department of Justice (DOJ) submitted a brief in a lawsuit filed on behalf of Fair Fight and two voters alleging that True the Vote, a right-wing “election integrity” organization that has been accused of voter intimidation since 2012, violated Section 11(b) of the Voting Rights Act (VRA), which prevents voter intimidation. The plaintiffs argue that True the Vote“launched a massive, multifaceted campaign of voter intimidation” leading up to the 2021 Senate runoff elections in Georgia. As part of this campaign, True the Vote allegedly “launched the largest mass challenge effort in Georgia history, targeting hundreds of thousands of voters just two weeks before the January 2021 runoff election.” True the Vote argues that these voter challenges do not intimidate voters under the plain meaning of the law, they are protected by the First Amendment and as a result Section 11(b) of the VRA is unconstitutional. The group also raises the specter of vote dilution — a common theme in many recent conservative voting lawsuits — as a defense against the plaintiffs’ case, suggesting the possibility of ineligible voters voting dilutes the value of their lawful votes.
In advance of a hearing in the case on Feb. 1, the court invited the DOJ, which was not an original party in the lawsuit, to respond to True the Vote’s arguments about the constitutionality of Section 11(b). In the supplemental briefing filed yesterday, the DOJ writes that the court “should reject Defendants’ challenges to the constitutionality of Section 11(b).” The DOJ begins by rejecting the defendants’ attempt to limit the scope of 11(b) because their “proffered limitations…have no basis in its text, history, or precedent.” The DOJ argues that the plain language of the VRA provides no limitations or exceptions to the “core prohibition on intimidation, threats, and coercion” and does not require proof that the voter intimidation was intentional or successful to find an 11(b) violation. Additionally, the DOJ says that 11(b) has “an unlimited reach, covering all people who are intimidated, threatened, or coerced…regardless of whether they were specifically targeted.” The DOJ also rejects True the Vote’s argument that voter challenges allowed under state law, as in Georgia, can never violate 11(b), writing that “filing knowingly or recklessly false voter challenges or filing challenges in an intimidating, threatening, or coercive manner would violate the statute.”
The DOJ continues by defending the constitutionality of Section 11(b), noting that the statute “proscribes,” meaning forbids, “intimidating, threatening, and coercive conduct, which the First Amendment generally does not protect.” Section 11(b)’s application to “knowingly or recklessly false voter challenges would be consistent with the Free Speech Clause” since the First Amendment does not protect knowingly or recklessly false speech when such speech inflicts harm, like depriving a voter of their right to vote. Finally, the DOJ argues that even if some of the defendants’ conduct was protected by the First Amendment, Section 11(b) would still be constitutional since “‘protecting voters from confusion and undue influence’ in the voting process is a ‘compelling interest.’” As the brief notes, 49 states, Washington, D.C. and the federal government “all proscribe voter intimidation,” reflecting a universal understanding that the government can limit First Amendment rights to protect voters. The DOJ then rejects the defendants’ argument that the statute is too vague to be constitutional.
The DOJ ends the brief by contesting the defendants’ claim that vote dilution represents a legitimate defense against Section 11(b). As the DOJ notes, vote dilution arguments can only be made “under Article 1, Section 2 of the United States Constitution, the Reconstruction Amendments, or the Voting Rights Act” and “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.” Additionally, because the defendants have other ways to challenge any perceived vote dilution, a claim of vote dilution “does not excuse unlawful voter intimidation.”
The plaintiffs and defendants also submitted supplemental briefs to the court yesterday addressing several questions posed by the court. The plaintiffs’ brief echoes 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.” The defendants’ brief, meanwhile, argues that Section 11(b) requires “a direct connection between the person claiming to be intimidated and the alleged perpetrator,” a connection they argue doesn’t exist in the case. They also contend that applying Section 11(b) to their voter challenges would prohibit them from protecting their vote from vote dilution.