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How to Use Anti-KKK Laws to Go After Trump

The Donald, the election and the Fifteenth Amendment.
November 27, 2020
How to Use Anti-KKK Laws to Go After Trump
Obviously, no one can possibly guess who this gentleman will be voting for in November. It's a mystery! ( ANDREW CABALLERO-REYNOLDS/AFP via Getty Images)

Donald Trump has the right to contest election law violations in court. He is likewise free to peddle whatever conspiracy theories he likes outside of court.

But Trump and his team may be exposing themselves to liability for a different kind of conspiracy: one to suppress the counting of Black votes in violation of the Fifteenth Amendment.

After the Civil War, Southern whites launched a campaign of terror to deny newly freed slaves the right to vote. In response, the Fifteenth Amendment barred discrimination against voting rights on the basis of race. To enforce this, Congress passed the Ku Klux Klan Act of 1871, which, in Section 1985(3), creates a private right to sue those who, motivated by race,

conspire . . . for the purpose of preventing or hindering the constituted authorities of any State . . . from giving . . . to all persons within such State . . . the equal protection of the laws; or . . . to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy . . . in favor of the election of any lawfully qualified person as an elector for President.

Trump’s post-election barrage of specious lawsuits (32 losses in 34 cases, so far) is not enough on its own to support a Section 1985(3) claim. But in addition to these lawsuits, the Trump campaign has “[hindered] the constituted authorities” of the states in order to disqualify presidential votes in disproportionately Black jurisdictions such as Philadelphia (42.3 percent Black), Detroit (78.6 percent), Atlanta (51.8 percent), and Milwaukee (38.8 percent). Black voters in these jurisdictions can bring lawsuits.

Certification is a ministerial act, meaning that once the votes are counted and court challenges resolved, local and state election officials must certify the results. Any interference is “hindering” this completion.

Michigan offers an example. A Republican member of the Wayne County Board of Canvassers initially advocated denying certification for Detroit ballots, but not those from whiter cities. Both Republican members then voted against certification (deadlocking the board), before later reversing themselves. Then, after a call from President Trump, they sought to rescind their votes to certify. Next, Republican National Committee Chairwoman Ronna McDaniel and Michigan GOP Chair Laura Cox asked to delay state certification for 14 days, which would bump up against the December 7 statutory certification deadline. There have also been requests to disqualify huge numbers of Wisconsin ballots and do a second Georgia recount.

The Trump campaign’s Section 1985(3) violations go beyond “hindering” to “intimidation” and “threat.” Donald Trump has a decades-long history of using litigation to intimidate opponents. Given his pattern of retaliation against Republicans who deviate from absolute loyalty, the careers of current elected officials are at risk.

Georgia Secretary of State Brad Raffensperger, a Republican, reports being pressured to invalidate legally-cast ballots by South Carolina Senator Lindsey Graham, a Trump loyalist who also contacted election officials in Arizona and Nevada. Like other election officials in closely contested states, Raffensperger has reported threats to himself and his family. He expects to be primaried in 2022. Trump himself called the Michigan legislature’s Republican leaders into the White House for a closed-door meeting. Afterwards, the legislators issued a statement that the certification process should be “free from threats and intimidation.”

Interesting that this would be their response to meeting the president of the United States.

If suits are filed, the discovery process would require participants in the voter suppression effort — including White House staff performing campaign duties — to produce emails, recordings and phone records relating to attempts to hinder certification and threaten officials. Trump and his surrogates could be required to give sworn depositions. The legitimate legal work of Trump’s election lawyers would be shielded by privilege — but not efforts to assist in election fraud, or unsupported allegations made to the public that are unconnected to legal work, such as Sidney Powell’s evidence-free accusation that Georgia Governor Brian Kemp and Raffensperger were taking payoffs.

Defendants who violate Section 1985(3) have joint and several liability for damages, meaning that Donald Trump could be held liable for all acts of those associated with him, even if he did not directly make the threats himself.

And because these acts relate to his role as a candidate, rather than his official acts as president, he would have difficulty claiming immunity. The damages could be substantial: in one case, plaintiffs were awarded $500 to $2,000 each when denied their voting rights. There were hundreds of thousands of Black votes in the jurisdictions that Trump has sought to disenfranchise, which would be a lot of money. Also, defendants who lose Section 1985(3) suits have to pay the plaintiffs’ attorneys’ fees.

It is important to understand that President Trump’s assault on America’s electoral process is not normal post-election jockeying, and its lack of success should not affect liability for the attempt. After all, terrorists are often convicted even when they have been arrested before carrying out their plots.

There’s the broader question of whether or not we should want to hold Trump accountable, fostering division and making it harder for the nation to heal. But the failure to defend voting rights can result in their slow erosion: After post-Reconstruction courts turned the Ku Klux Klan Act into a dead letter, Southern Blacks were stripped of their voting rights over the course of a quarter-century. Those rights were not restored until the 1960s.

And there is also no reason to believe that this attempt is a one-off. Donald Trump’s post-election strategy has created a roadmap for suppressing votes on the basis of race. So if the Trump campaign faces no liability, future candidates will be held back by nothing but their sacred honor. That’s not nothing, of course. But it’s a thin reed on which to hang the future of our democracy.

Conservatives often lament the creation of new laws by saying that we should simply exercise existing laws more actively. Well, in this case we have a law to deal with behavior like Donald Trump’s already on the books.

All that voters need is the will to invoke it.

Jay Weiser

Jay Weiser is Associate Professor of Law Emeritus at Baruch College’s Zicklin School of Business.