National Coalition on Black Civic Participation v. Wohl

Question Presented

Whether it is “intimidating” under the Voting Rights Act and the Ku Klux Klan Act to place robocalls to Black voters warning them that voting by mail would subject them to dire consequences, such as the possibility that their information would be sent to law enforcement and debt collectors or subject them to forced vaccination.

Background

The Ku Klux Klan Act (KKK Act) and the Voting Rights Act (VRA) are two voter protection laws that, among other things, protect Americans from intimidation at the ballot box. Congress passed these laws in response to campaigns of intimidation, coercion, bribery, and violence largely aimed at Black and immigrant voters and their allies during the Reconstruction and Jim Crow eras.

To prove a violation of the VRA, a plaintiff needs to show that the defendant “intimidated, threatened, or coerced someone for voting or attempting to vote, or has attempted such intimidation, threat, or coercion.” To prove a violation of the KKK Act, a plaintiff needs to show that the defendant engaged in (1) a conspiracy; (2) for the purpose of forcing, intimidating, or threatening; (3) an individual legally entitled to vote who is engaging in lawful activity related to voting in federal elections.

The Case

In this case, the National Coalition on Black Civil Participation and a group of individual plaintiffs, joined by the Attorney General of New York, are suing Jacob Wohl and Jack Burkman for alleged violations of the KKK Act and the VRA. Looking to “HIJACK this boring election,” the Defendants paid $1,000 to send a robocall to 85,000 people in “black neighborhoods.” These calls falsely warned recipients that voting by mail would expose voters’ personal information to police, creditors, and the CDC, which would pursue “old warrants,” collect outstanding debts, and perform “mandatory vaccinations.” The Defendants placed these during the height of the COVID-19 pandemic when many people planned to vote by mail for their personal health and safety. It fit into their declared plan to “affect[] political outcomes” by targeting and suppressing “important Demographics of Democratic voters.” The Defendants declared in texts their intent to “make shit up” to achieve this aim.

At this stage of the litigation, the Plaintiffs are moving for summary judgment on their claims that the Defendants violated the KKK Act and VRA.

EPIC’s Brief

EPIC’s amicus brief aims to bolster the Plaintiffs’ claims that the Defendants’ acts were intimidating by explaining the importance of privacy in voting. EPIC’s brief traces how employers, creditors, landlords, party bosses, and other powerful actors have used threats of economic and physical reprisal to control voters in the past. EPIC’s brief describes how legislators in the 19th century turned to privacy to address these issues and adopted the secret ballot, which enables voters to exercise the franchise without fear of harm. Ballot secrecy and other voter privacy measures have since become immensely popular and are guaranteed in state constitutions and statutes nationwide. EPIC’s brief describes why, while this case does not directly implicate the secret ballot, the Defendants’ conduct falls into a long line of intimidating behavior that strikes at the heart of privacy and election integrity. The proposed brief also explains why the chosen method of communication in this case—robocalls—is especially invasive.

Legal Documents