FIGHTING AGAINST VOTER INTIMIDATION: FAIR FIGHT, INC. V. TRUE THE VOTE
Fair Fight, Inc. is challenging the suppressive tactics of Texas-based organization, True the Vote, and its attempts to intimidate thousands of Georgia voters through illegal voter challenges intended to keep Georgians from exercising their fundamental right to vote.
Summary judgment briefing concluded on July 5, 2022. In their summary judgment briefing, Plaintiffs asked the Court to rule that no outstanding questions of fact remain, and Plaintiffs are entitled to judgment in their favor and against True the Vote and its co-Defendants. Plaintiffs also argued Defendants’ affirmative defenses lacked merit. Defendants, for their part, also moved for summary judgment arguing the case should be dismissed without a trial on the merits.
After the parties filed their summary judgment briefing, the Court ordered that the United States of America could intervene in the case to respond to Defendants’ arguments about the constitutionality of Section 11(b) of the Voting Rights Act. The United States accepted the opportunity to intervene in the case and filed its own briefing about Defendants’ constitutional challenge.
The Court held a hearing on the parties’ summary judgment briefing on February 1, 2023. In addition to hearing arguments on the parties’ cross motions for summary judgment, the Court heard arguments regarding the constitutionality and interpretation of Section 11(b) of the Voting Rights Act.
The Court ruled on the parties’ cross motions for summary judgment on March 9, 2023, and, through its Order, confirmed Plaintiffs’ will receive a trial on the merits of their claim. The Court also ruled in Plaintiffs’ favor with respect to certain affirmative defenses raised by True the Vote. The Court’s ruling addresses several important issues in the case.
First, as Plaintiffs argued in supplemental summary judgment briefing, the Court took a broad interpretation of Section 11(b). The Court held that a Section 11(b) analysis requires a court to examine the totality of the circumstances, that for conduct to violate Section 11(b) it does not need to be violent, and Section 11(b) violations include those actions directed through third parties. Second, the Court rejected Defendants’ “amorphous” affirmative defense that they are protected from vote dilution under the Fourteenth Amendment and, therefore, their conduct does not violate Section 11(b).Third, the Court granted Plaintiffs’ motion for summary judgment and rejected Defendants’ affirmative defense that Section 11(b) is unconstitutionally vague or overly broad either facially or as applied to Plaintiffs’ claims.
The parties will go to trial on a date to be determined. The Court has stated the issues at trial will be whether Defendants violated Section 11(b) of the VRA and whether Defendants’ actions constituted speech protected by the First Amendment. The parties’ consolidated pretrial order is due Monday, April 10, 2023.
On March 6, 2023, the Court granted Plaintiffs’ motion in limine to exclude improper expert testimony from Gregg Phillips of OPSEC Group and Defendants Mark Davis and Derek Somerville. Defendants sought to introduce Phillips’s, Davis’s, and Somerville’s testimony as expert opinions regarding the reliability of the algorithms used to make Defendants’ voter challenge lists. The Court agreed with Plaintiffs that Defendants failed to designate Phillips, Davis, or Somerville as expert witnesses, and so the individuals could not testify as experts.
ABOUT THE CASE:
Section 11(b) of the Voting Rights Act of 1965 (“VRA”) outlaws any acts that are objectively likely to intimidate voters. Knowing the history of voter suppression and intimidation in this country, and particularly the state of Georgia, True the Vote and the other defendants in the lawsuit took affirmative steps to intimidate voters and try to keep them from voting in violation of § 11(b) of the VRA.
In the wake of the 2020 General Election, which saw historic turnout across the country, elected officials unhappy with the election results attempted to curb voter enthusiasm and this country’s expanding participation in the political process by perpetuating and fostering the Big Lie that election results were due to voter fraud. Although courts and elections officials across the country (and in Georgia) repeatedly found claims of widespread voter fraud to be wholly without merit, Defendants used the Big Lie as the basis to launch preemptive attacks to challenge the eligibility to vote of more than 364,000 Georgians in advance of the senate run-off, many of whom were Black and brown voters and first-time voters, on the grounds that these voters no longer reside in the State of Georgia. The challenges were false and meritless, and based on purported lists of names culled from the U.S. Postal Service National Change of Address (“NCOA”) registry— a notoriously unreliable means of determining voter eligibility. In their challenges, Defendants also failed to consider the numerous reasons an individual may file a NCOA form, yet still be eligible to vote in Georgia, particularly in the midst of a global pandemic.
To address the violations of federal law, Fair Fight, Inc. has sought relief from the federal court. Fair Fight is demanding that the court declare Defendants’ actions illegal, enjoin Defendants’ activities, and require True the Vote to cease all operations in Georgia.
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