EDVA: Voter intimidation, defamation claims survive dismissal

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Two publications purporting to reveal widespread voter fraud have given rise to a viable lawsuit. The published materials (called Alien Invasion I and II) allegedly reported falsely that specific individuals, identified by name and other personal information, had registered and/or voted illegally in Virginia.

Background

The League of United Latin American Citizens and four other individual Plaintiffs allege that, in September 2016, Defendant Public Interest Legal Foundation and others published a written report titled Alien Invasion I. It accused Virginia voters of feloniously registering to vote and casting ineligible ballots.

Although the accusations were based on lists of “purged” registrants obtained from Virginia county registrars, these lists actually contained registrants who were, in fact, properly voting citizens removed from voting rolls for various administrative reasons. The Plaintiffs allege that Virginia election officials informed the Defendants that they were drawing false conclusions from the registrar information, but the Defendants published Alien Invasion I anyway.

In May 2017, the Defendants allegedly published a sequel, Alien Invasion II. Similar to the first report, the sequel was published along with a roughly 800-page appendix containing voter registration forms that included the names, home addresses, and telephone numbers of the alleged felons – including individual Plaintiffs.

As a result of the two reports, the individual Plaintiffs claim embarrassment and fear, and the League reports that its members have been and continue to be intimidated and threatened by the Defendants’ assertion that their legal voting activity should be criminally prosecuted. Instead of pursuing its ordinary activities, the League claims it now must devote resources to combat the false narrative that Latinos who vote are doing so illegally.

Voter intimidation

The text of 52 U.S.C. § 10307(b) – also known as § 11(b) of the Voting Rights Act – is dispositive as to its reach to private actors like the Defendants. It refers to persons “acting under color of law or otherwise” (emphasis added).

Contrary to the Defendants’ contentions, multiple U.S. Supreme Court opinions hold that the Elections Clause broadly authorizes federal regulation of “ballot casting.” Thus, constitutional authority for § 11(b) does not rely on the Fifteenth Amendment (which does only apply to state actors).

Further, the Defendants’ suggestion that the Plaintiffs’ allegations do not rise to the level of intimidation is untenable. According to the complaint, they linked the Plaintiffs’ names and personal information to a report condemning felonious voter registration in a clear effort to subject the named individuals to public opprobrium. The Plaintiffs have thus plausibly alleged that the Alien Invasion reports put them in fear of harassment and interference with their right to vote.

§ 1985

Having sufficiently alleged facts supporting a conspiracy, the Plaintiffs persuasively argue that, because their claim arises under the “support and advocacy” clause of § 1985(3), they need not show a violation of any other substantive right nor allege that any race- or class-based animus motivated the Defendants’ actions. Although the case law is not entirely clear, this conclusion is supported by Griffin v. Breckenridge, 403 U.S. 88 (1971), and Kush v. Rutledge, 460 U.S. 719 (1983), and finds no contradiction in 4th Circuit precedent.

For these reasons, the Plaintiffs have stated a claim under the “support and advocacy clause” of § 1985(3).

Defamation

Here, all the elements of Virginia’s defamation tort are satisfied. Alien Invasion I and Alien Invasion II were publications that listed the Plaintiffs’ names in the attached appendices. The Defendants imputed felonious conduct to these individuals by inference in the reports. For example, Alien Invasion I allegedly states clearly: “The U.S. Attorney in Virginia has done nothing about the felonies committed by 433 aliens registering in Prince William County alone.”

The Defendants also allegedly cast aside warnings from Virginia elections officials about the falsehood of their reports on two separate occasions. The Plaintiffs have sufficiently pleaded that the Defendants had constructive knowledge of the falsity of the information.

The Defendants cannot prevail on their statute-of-limitations defense at this time. They fail to rebut the Plaintiffs’ assertion that Alien Invasion II (published within the one-year filing period) is effectively a successive publication of Alien Invasion I. Given the textual, thematic, and formalistic parallels between the two publications, Alien Invasion II qualifies as a “republication” for purposes of defamation, and the limitations period accordingly does not bar this claim.

Finally, the Defendants’ anti-SLAPP defense also fails due to their alleged constructive knowledge of the falsity of the information pertaining to the named Plaintiffs. Because the Plaintiffs have sufficiently alleged the Defendants’ awareness of the risk of the incorrectness of the voter registration data obtained from the county registrars, the defamation claim can proceed.

Motion to dismiss denied.

League of United Latin Am. Citizens – Richmond Region Council 4614 v. Pub. Interest Legal Found., Case No. 1:18cv423, Aug. 13, 2018. EDVA at Alexandria (O’Grady). VLW No. 018-3-336, 14 pp.