A nearly four-year-old legal effort by Black voters to convince a court to prevent former President Donald Trump and the Republican Party from potentially intimidating voters and poll workers is quietly coming back to life as the 2024 election approaches.
First brought in the days following the 2020 election, the lawsuit has moved slowly through the federal courts in Washington, DC, as Trump’s claims of presidential immunity from civil lawsuits were being litigated. It coincidently has landed before US District Judge Tanya Chutkan, the judge handling the federal election subversion charges against Trump.
But now, the case is beginning to show signs of movement.
The case could have enormous implications for this election and future ones: The voters are asking a federal judge to put Trump, his campaign and the Republican National Committee under court supervision that would require them to seek pre-approval before “engaging in any activities related to recounts, certifications, or similar post-election activities,” and to bar the defendants from intimidating voters, poll workers and other election officials.
If the plaintiffs ultimately prevail, their victory could provide them with a significant deterrence against potential intimidation and harassment of election workers and voters from Republicans as Trump and his allies signal that they will again try to undermine the results of the election.
The type of supervision sought by the voters is not new for the Republican Party: The GOP had previously been under a court-ordered consent decree from the early 1980s until 2017 that barred it from engaging in practices that could intimidate or discriminate against Black voters.
Rajiv Parikh, an attorney who represented the Democratic Party during part of the long-running case against the RNC that resulted in the now-expired consent decree, said courts play a critical role in preventing the type of intimidation that the Black voters are alleging occurred during the 2020 election.
“Just because your intention isn’t to discriminate against a group or to intimidate somebody, if what you do has the effect of doing that, then it really is going to be up to a court as an independent arbiter of what’s appropriate or what’s not to decide that,” he said.
At the heart of the lawsuit are claims by Black voters in Michigan that the defendants worked together in 2020 to unlawfully disenfranchise them and other voters in “major metropolitan areas with large Black voter populations” through “disrupting vote counting efforts, lodging groundless challenges during recounts, and attempting to block certification of election results through intimidation and coercion of election officials and volunteers.”
In doing so, the lawsuit alleges, the defendants violated the Voting Rights Act of 1965 and the Ku Klux Klan Act, a Reconstruction-era law passed to combat violence by the White supremacist group and allow people to take civil action against individuals who “conspire to prevent by force, intimidation, or threat,” participation in US elections.
Attorneys for Trump and the RNC have asked to dismiss the case, saying any conduct at issue constitutes protected political speech.
“This is simply a transparent attempt to quell political dissent and chill political speech,” a lawyer for Trump and his campaign wrote in a filing last year. “Even assuming all the allegations are true, President Trump and his Campaign engaged in simple and straightforward political speech during an important political dispute.”
Chutkan has yet to make any substantial rulings in the matter. She was randomly assigned the pivotal case last October, receiving it months after she started overseeing the criminal case brought by special counsel Jack Smith against Trump. Weeks later, the judge stressed the need to have “some forward motion” in the civil matter as the nation barreled toward the presidential election.
“It’s been pending for a long time. At a certain point, a failure to decide means that it effectively denies the plaintiffs their remedy,” Chutkan said during a hearing in late November.
The lawsuit, Michigan Welfare Rights Organization v. Trump, is asking both for court supervision of election-related activities as well as monetary damages for the alleged harms that took place around the 2020 election. But in recent weeks, the plaintiffs asked for permission to drop their demand for damages to avoid a protracted fight over whether Trump can avoid liability by arguing that his actions during the last election are shielded by presidential immunity.
In a filing Tuesday, lawyers for the Black voters stressed that avoiding litigation over the question of immunity would allow the case to “proceed expeditiously … particularly in light of the upcoming November election.”
The now-expired consent decree the RNC had been under for nearly four decades was between Republicans and the Democratic National Committee, which had sued the GOP over alleged intimidation of voters in majority Black areas of New Jersey during the 1981 election.
The proposed supervision in the DC case would differ from the earlier consent decree in several key ways. First, it would be between the GOP and nonpartisan voters instead of two political parties. Second, the earlier consent decree was primarily concerned with poll watching, whereas the proposed one seeks to protect both voters and election workers, a group of officials who were targeted by Trump’s allies in 2020 as he pushed lies about the legitimacy of the election and its results.
“In this fraught and dangerous climate, twenty percent of election officials polled plan to leave before the 2024 election, in large part due to political leaders’ attacks. Thirty percent of officials know of one or more election workers who already have left their jobs because of fear for their safety, increased threats, or intimidation,” the lawsuit states.
Parikh said he sees the court supervision sought as being especially important in swing states like Georgia and Pennsylvania, where Republican lawyers might focus their efforts on areas in those states with large populations of minority voters.
Using the KKK Act for ‘its original purposes’
The Ku Klux Klan Act has not been well litigated in the modern era, according to legal experts, though in recent years some plaintiffs have leaned on the statute as they’ve sought to hold Trump and his supporters accountable for their actions around the 2020 election, or pursue monetary damages from individuals who have engaged in right-wing political violence.
Ruth Greenwood, the director of the Election Law Clinic at Harvard Law School, said that the notable thing about the DC case is that “it is seeking to use the KKK Act a lot more for its original purposes.”
The Black voters, Greenwood said, are trying to “ensure that there is a court that litigants can rush to if these types of actions are tried again in 2024.”
Cases pending in DC that invoke other provisions of the 1871 law have been brought by Democratic lawmakers and Capitol Police officers against Trump and his allies in the aftermath of the January 6, 2021, attack on the US Capitol.
Another high-profile use of the law was in a case over conservative activists Jacob Wohl and Jack Burkman’s voter suppression campaign that used robocalls to target Black voters during the 2020 election. A federal judge found the two men liable for targeting Black voters in 2023, saying that their actions ran afoul of the KKK Act, the VRA and other laws. The two later agreed to pay $1 million for the scheme.
One of the most notable outcomes of the modern application of the law came in a federal courtroom in Charlottesville, Virginia. A jury fined neo-Nazi and White supremacist organizers and protesters in the 2017 “Unite the Right” rally millions for the distress they gave counterprotesters, including four who were struck by a car. An appeals court later limited the damages for the plaintiffs to about $2 million.
Meanwhile, a jury this week is hearing a case in Austin’s federal court where Biden-Harris campaign affiliates in 2020 say they were traumatized by drivers in a “Trump Train” caravan that surrounded their campaign bus on a Texas interstate. The judge overseeing that matter has signed off on the KKK Act being used in the case.
CNN’s Katelyn Polantz contributed to this report.
