How the Left Weaponized the Voting Rights Act
The Left turned the Voting Rights Act into a sword to attack Election Integrity
*An abridged version of this article originally ran in The Blaze on February 16, 2024.
The Article. In 1965, the United States Congress passed The Voting Rights Act, seeking to end racial discrimination in voting primarily in the American South. Among other things, The Voting Rights Act ended the use of literacy tests to exclude people from voting and imposed "preclearance" requirements on new voting rules on mostly Southern States, requiring the Federal Government to pre-approve any changes to the States’ voting laws. This law is credited with vastly expanding African-American voter registration and participation, particularly in the South. The law was originally designed to “sunset” or end in 5 years, but went through a series of extensions and amendments over the decades.
In addition to banning “literacy tests” as a voter registration screening tool, imposing the “preclearance” requirement (which the United States Supreme Court found to be unconstitutional in 2013) and requiring ballots and election information to be available in languages other than English when certain conditions are met, The Voting Rights Act also contains language protecting voters from intimidation, threats and coercion while voting or aiding others to vote. These intimidation provisions are now being used as a weapon to fight against election integrity. Allow me to explain.
The intimidation provision of The Voting Rights Act is commonly known as “Section 11(b)” of the Act. Its provisions are found in 52 U.S.C. §10307(b), and provides:
A plain reading of this statute probably does not alarm the average person concerned with election integrity. After all, no one should be allowed to intimidate, threaten or coerce voters, should they? The problem lies in the manner in which leftists and activist courts interpret “intimidate, threaten or coerce.”
Intimidate, threaten and coerce originally had the meaning one might expect, involving actual threats of physical violence often employed by the Ku Klux Klan. Federal courts, however, are beginning to take a very expansive view of what constitutes “intimidation, threats or coercion.” In recent years, Federal courts ruled that one may “intimidate, threaten or coerce” a voter under Section 11(b) using words alone, without any threat of physical harm at all. In fact, the use of Section 11(b) gets worse.
In litigation arising out of the January 2021, U.S. Senate Runoff elections in Georgia, leftist activists used Section 11(b) to sue election integrity groups and individuals for using available State law procedures to challenge voter registrations believed to be unlawful. The leftist activists claimed the use of State law procedures, and the public statements made by the election integrity activists, constituted “intimidation, threats or coercion.” Here is what happened.
After the 2020 Presidential Election, evidence came to light that a provision of Georgia law requiring voters to vote in the county where they reside may have been violated by thousands of voters, in excess of Joseph Biden's 11,000 vote margin of "victory" in the State. Election integrity groups and activists took action, using the procedures provided by Georgia law, to challenge some of these voters before the U.S. Senate runoffs in Georgia in January 2021.
The suit involved claims made by Fair Fight (a leftist public advocacy group founded by Stacey Abrams), among others, against a number of parties, including True the Vote (the election integrity group headed by Catherine Engelbrecht).
The Fair Fight plaintiffs literally claimed “any mass challenge of voters near an election (especially if negligently or recklessly made) constitutes intimidation,” as the court described.
While the court disagreed with Fair Fight, it did so because the Georgia law at issue left it up to the County Board of Elections to pursue or not pursue any of the challenges. This Board of Elections “intermediary,” “breaks the chain of causation for purposes of establishing liability for voter intimidation,” in the words of the court. The court also determined the public statements and social media posts made by True the Vote and other defendants did not rise to the level of intimidation.
Nevertheless, while these election integrity activists successfully defended this suit and prevailed at trial, they were forced to endure two years of litigation, including extensive discovery, motion practice and a trial on the merits – all because they utilized the procedures provided by Georgia law in an effort to try to ensure ineligible voters did not vote and because they made public statements in support of those efforts.
Anyone using lawful State procedures to challenge voters and voter registration and who exercises their First Amendment Rights in connection with the effort should not be subject to being sued under The Voting Rights Act.
Until, Congress, the Federal Courts of Appeal or the United States Supreme Court rein in this judicial overreach, you can bet more lawsuits like the one brought in Georgia are in the works. People fighting for election integrity need to familiarize themselves with The Voting Rights Act, retain competent legal counsel to advise them on their activities and ensure their every effort is beyond question. The fight for election integrity is one worth waging, but rest assured the left will fight tooth and nail. The left discovered Section 11(b) of The Voting Rights Act may be an effective weapon. Americans fighting for the integrity of our elections better be prepared to defend against it.
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