Demos requests that the Department of Justice investigate a potential violation of Section 11(b) of the Voting Rights Act, 52 U.S.C. § 10307(b) (2012), by the President of the United States. In a tweet broadcast widely on November 5, 2018, the day before the November 6, 2018 elections, the President warned:
Law Enforcement has been strongly notified to watch closely for any ILLEGAL VOTING which may take place in Tuesday’s Election (or Early Voting). Anyone caught will be subject to the Maximum Criminal Penalties allowed by law. Thank you!
Such threats should be investigated under Section 11(b) of the Voting Rights Act, which provides in part:
No person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote, or intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for urging or aiding any person to vote or attempt to vote[.]
52 U.S.C. § 10307(b) (2012).
Congress adopted Section 11(b) of the Voting Rights Act to provide broad protections against all forms of voter intimidation. A violation of Section 11(b) may be established without any showing that the perpetrator had a subjective purpose of intimidating voters through his words or actions. The House report accompanying the legislation makes this clear: “[U]nlike [[Section 131(b) of the 1957 Civil Rights Act] (which requires proof of a ‘purpose’ to interfere with the right to vote) no subjective purpose or intent need be shown” under Section 11(b) of the VRA. H.R. Rep. No. 89-439, at 30 (1965). See also League of United Latin American Citizens – Richmond Region Council v. Public Interest Legal Foundation, 2018 WL 3848404, at *3-4 (E.D. Virginia August 13, 2018) (holding that allegations of widespread illegal voting by large numbers of individuals in Virginia jurisdictions supported a cause of action under Section 11(b)). Similarly, the statute prohibits voter intimidation whether or not it is targeted at specific racial groups or motivated by racial animus. Id.; see also House Report at 30 (“acts of intimidation need not be racially motivated”).
Trump’s threat to station law enforcement officials to aggressively monitor polling places for alleged illegal voting, therefore, appears to violate Section 11(b) because of its potential to deter eligible persons from voting. Indeed, even though proof of intent is not required, it is reasonable to conclude that the President’s threat is, in fact, intended to have precisely that result. Its impact on potential voters should be evaluated in terms of Trump’s extensive past efforts to create groundless narratives about “voter fraud” and to target political opponents for law enforcement efforts. These past efforts include the establishment of a “Presidential Commission on Election Integrity” that ultimately had to be disbanded in the wake of overwhelming evidence that its mission was built on false claims of rampant voting fraud in the U.S. Charles Stewart III, “Trump’s Controversial Election Integrity Commission is Gone. What Comes Next?”, Washington Post, January 4, 2018. They also include Trump’s repeated calls for prosecution and jailing of political opponents. In addition, Trump’s incessant vilification of immigrants and persons of color make it reasonable for eligible voters with immigrant backgrounds and persons of color to view Trump’s latest threat as making voting riskier for them. As Attorney General Nicholas Katzenbach, who drafted much of the Voting Rights Act, explained, defendants charged with violating Section 11(b) “would be deemed to intend the natural consequences of their acts.” Voting Rights, Part 1: Hearings on S. 1564 Before the S. Comm. on the Judiciary, 89th Cong. 16 (1965).
For these reasons, Demos requests that you investigate whether the President’s threat of prosecution is in violation of Section 11(b) of the Voting Rights Act, and any other applicable provision of law.