Julieta Garibay received an unexpected message in January 2019.1 Despite Garibay’s status as a naturalized citizen, Texas officials were investigating her voter registration.2 Garibay had appeared on a list of “Possible Non U.S. Citizens” created by the Texas Secretary of State.3 The Secretary had instructed Texas counties to use the list for voter roll maintenance, suggesting the counties should require those listed to prove their U.S. citizenship.4 Garibay told media outlets that she “felt outraged. . . . They basically accused me — and thousands of others — of committing fraud.”5 She and several coplaintiffs sought damages and other relief in a class lawsuit.6 In addition to bringing claims under the First and Fourteenth Amendments, section 2 of the Voting Rights Act, and the Civil Rights Act, Garibay and her coplaintiffs also alleged violations of 42 U.S.C. § 1985(3),7 a provision of the Ku Klux Klan Act of 1871.8
The Ku Klux Klan Act was passed at the behest of President Ulysses S. Grant following the Civil War.9 The Act created the precursor to the well-known civil rights statute 42 U.S.C. § 198310 and authorized a temporary suspension of the writ of habeas corpus.11 The Act also imposed civil liability and criminal penalties for a range of private conspiracies.12 These included conspiracies to overthrow the government; wage war against the United States; “depriv[e] any person or any class of persons of the equal protection of the laws”; or use “force, intimidation, or threat to prevent any citizen of the United States lawfully entitled to vote from giving his support or advocacy” to a federal candidate.13 This last “Support or Advocacy Clause” underlaid Garibay’s § 1985(3) claim.14
Despite its early provenance, very few cases have been brought under the Support or Advocacy Clause. Modern-day scholars describe the provision as “obscure”15 and “often-neglected.”16 Lower courts are divided on whether the Support or Advocacy Clause (1) applies to actions harming any citizen, or only members of protected classes; (2) creates a substantive right, or only provides a remedy for separate statutory or constitutional violations; and (3) protects against private action, or only state action.17 Within the past two years, judges in the same federal district have issued divergent opinions on cases presenting these legal questions.18
Clarifying the meaning of § 1985(3) is especially important given the difficulty of deterring private voter intimidation with injunctive relief alone, and given courts’ increasing reluctance to make findings of discriminatory intent.19 Unlike other voting rights statutes,20 the Support or Advocacy Clause authorizes private suits for damages and arguably does not require a showing of purposeful discrimination.21 The clause could therefore be a powerful tool for voting rights advocates, particularly in an era of widespread voter intimidation perpetrated by private actors.22
This Note argues that the legislative history and early application of the Support and Advocacy Clause validate its present-day use by voting rights advocates. Part I explains why the Support or Advocacy Clause is an important tool to protect voting rights and frames three unresolved questions regarding the clause’s meaning. Part II examines the history of the clause, including legislative debates and early judicial applications, to clarify why a robust interpretation of the clause is appropriate. Part III demonstrates how lower courts have erroneously constrained the Support or Advocacy Clause, by applying limitations that were applicable only to other portions of § 1985(3). Part IV argues for the present-day use of the Support or Advocacy Clause, demonstrating the provision’s particular usefulness given current challenges to voting rights.
I. Why the Support or Advocacy Clause?
Political participation is at the heart of our democracy. And yet the right to vote is under attack from numerous sides. State actors impose procedural hurdles to voting,23 adopt racially discriminatory voting policies,24 fail to correct deficiencies in voting infrastructure,25 and dilute their citizens’ votes through gerrymandering.26 Meanwhile, private actors deceive27 and intimidate28 voters in election after election.
Few legal tools can address these issues effectively. The Supreme Court has eviscerated the preclearance requirement of the Voting Rights Act29 and has rejected a federal constitutional remedy to partisan gerrymandering.30 The Department of Justice oversees enforcement of important voting rights statutes, including the Voting Rights Act31 and criminal statutes prohibiting private intimidation in federal elections. Vigorous enforcement of those laws is thus dependent in part upon political conditions in the federal government. In this context, private lawsuits to vindicate voting rights can be especially important.
Three statutes currently authorize private suits for voter intimidation in federal elections: section 131 of the Civil Rights Act of 1957,32 section 11(b) of the Voting Rights Act of 1965,33 and the Support or Advocacy Clause. Both section 131 and section 11(b) authorize only injunctive suits, limiting plaintiffs’ recovery to attorney’s fees and costs.34 Plaintiffs bringing such claims risk total nonrecovery, despite the significant costs required to bring a voting rights suit.35 In contrast, the Support or Advocacy Clause allows claims for compensatory and punitive damages.36 Such damages might include “emotional distress in severe cases of intimidation” or “wages lost due to fighting a frivolous voter registration challenge.”37
Plaintiffs seeking relief under the Support or Advocacy Clause face their fair share of hurdles. They must navigate considerable judicial confusion, as is detailed below. They must establish both the existence of a conspiracy38 and the conspiracy’s plan to use “force, intimidation, or threat.”39 These evidentiary requirements are not insignificant.
But the Support or Advocacy Clause offers substantial practical benefits. It allows individuals to bring suit, rather than waiting for an enforcement action by the federal government. It spares plaintiffs the difficulty of proving racial motivation on the part of defendants.40 And it allows victims to seek compensatory and punitive damages. Injunctive claims of voter intimidation are often rendered moot by the passage of elections. In contrast, damages vindicate plaintiffs’ rights, impose consequences for voter intimidation, and deter defendants’ future wrongdoing.
The substantial promise of the Support or Advocacy Clause is matched by substantial confusion about its purpose and proper application. The next subsection outlines three outstanding questions about the Support or Advocacy Clause that will be resolved by the historical and doctrinal analysis in Parts II and III.
The Support or Advocacy Clause of § 1985(3) reads:
[I]f two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; . . . if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.41
Compared to the other portions of § 1985(3), the Support or Advocacy Clause has received relatively little attention from litigants or scholars.42 Over the past two years, courts have issued contradictory decisions on three fundamental questions regarding the scope and operation of the clause.43 These questions are:
First, does the Support or Advocacy Clause apply to conspiracies against any citizen, or only to conspiracies driven by animus for members of a protected class? Plaintiffs suing under the “equal protection of the laws” portion of § 1985(3) (herein labeled the “equal protection provision”) must allege that the offending conspiracy was motivated by a “racial” or “class-based, invidiously discriminatory animus.”44 This effectively requires plaintiffs to show both that defendants were motivated by animus and that the animus was directed toward a member of a protected class. But the Supreme Court has suggested that such allegations are not required for other portions of § 1985.45
The Support or Advocacy Clause does not require a showing that defendants acted with discriminatory animus. The text of the clause confers a cause of action on “any citizen” who is injured on account of their support or advocacy. Supreme Court dicta strongly suggest that claims brought under the clause do not require allegations of racial animus.46 As explained above, the Support or Advocacy Clause’s lack of a racial animus requirement makes it an attractive tool for civil rights plaintiffs, given the difficulty of establishing discriminatory intent in court.47
Second, does the Support or Advocacy Clause create a substantive right, or does it merely provide a remedy for a separate statutory or constitutional violation? Supreme Court precedent is least clear on this question. Anticonspiracy suits under the “equal protection of the laws” or “equal privileges and immunities under the laws” portions of § 1985(3) must allege that the plaintiff has suffered a deprivation of a separate federal statutory or constitutional right.48 But the text of the Support or Advocacy Clause, unlike that of the equal protection provision, does not refer to any other laws. Still, lower courts have split on whether the Support or Advocacy Clause is remedial rather than substantive.49 Some courts have interpreted Support or Advocacy Clause claims as alleging violations of the First Amendment50 or the right of qualified voters to cast a ballot.51 Other courts have understood the clause as creating a new substantive right, pursuant to Congress’s constitutional power to protect the integrity of federal elections.52 The answer to this rights/remedies question determines whether plaintiffs bringing a Support or Advocacy Clause claim must prove only the elements of § 1985(3), or whether they must also bear the burden of proving a separate violation of another right.
Third, does the Support or Advocacy Clause protect against purely private conspiracies, or must plaintiffs allege state action? The text of § 1985(3) does not mention state action. Accordingly, the Supreme Court held in Griffin v. Breckenridge53 that § 1985(3) reaches purely private conspiracies, as well as conspiracies involving state action.54 Nevertheless, some courts have effectively required a showing of state action for Support or Advocacy Clause claims by presuming, pursuant to the second question above, that the clause only remedies violations of substantive rights outside of § 1985(3).55 In Support or Advocacy Clause cases, some courts have assumed the substantive right at issue is the First Amendment, which regulates only state action.56 These assumptions limit the applicability of the Support or Advocacy Clause by making it useful only against voter intimidation involving state actors.57
The value of the Support or Advocacy Clause as a modern tool against voter suppression depends on the answers to these three questions. The clause would provide a viable cause of action against private voter intimidation if courts were to find that the provision (1) shields all citizens, not only victims of class-based animus, (2) confers a substantive right, and (3) regulates private action. Over the twentieth century, judicial opinions have exacerbated confusion over these three issues by failing to distinguish between the different provisions of § 1985(3).58 This Note focuses specifically on the Support or Advocacy Clause in order to ensure that the clause’s potential is not lost.
II. History of the Support or Advocacy Clause
This Part examines the legislative history and early judicial applications of the Support or Advocacy Clause as a means of answering the three questions raised above. The Supreme Court has reviewed the legislative history of the Ku Klux Klan Act several times,59 but hardly any judicial discussion has focused on the Support or Advocacy Clause.
Three observations from this history support a robust interpretation of the Support or Advocacy Clause. First, the clause was created, at least in part, to address threats to voters by private actors, such as the Ku Klux Klan (KKK). Given this purpose, it is unlikely that Congress intended to limit the clause to circumstances involving state action. Second, nothing in the legislative history endorses a narrow view of the Support or Advocacy Clause. In fact, the floor debates support the view that the clause was understood to be far-reaching and uncontroversial. Third, early judicial applications of the Support or Advocacy Clause demonstrate that it was interpreted separately from the equal protection provision of § 1985(3).
The carnage of the Civil War was followed by “crisis in the Reconstruction South.”60 The KKK and other domestic terrorists acted with impunity, overwhelming government forces in several states.61 The KKK conducted a campaign of political terrorism focused on members of the Republican Party, particularly Black individuals.62
Reports of mob violence, torture, and intimidation of Black and Republican citizens prompted President Grant to write to Congress on March 23, 1871.63 President Grant recommended “such legislation as in the judgement of Congress shall effectively secure life, liberty, and property, and the enforcement of law in all parts of the United States.”64 Upon this request, the House appointed a select committee to draft legislation implementing the promises of Reconstruction.65 A few days later, Representative Samuel Shellabarger (R-OH) introduced H.R. 320, a bill “to enforce the provisions of the fourteenth amendment to the Constitution of the United States, and for other purposes.”66
Section 1 of the bill provided a model for the later 42 U.S.C. § 1983. It created a right of action in federal courts for violations of constitutional rights under color of state law.67 Section 2, the precursor to § 1985(3), imposed civil liability and criminal punishment for more than ten types of intrastate conspiracies.68 Section 3 enabled the President to deploy federal troops where state governments were unable to prevent the violent deprivation of constitutional rights, while section 4 authorized the President to suspend the writ of habeas corpus and impose martial law if a state could not protect its citizens or was complicit in a conspiracy against its citizens.69
The Support or Advocacy Clause was not included in this original version of H.R. 320. In fact, it was added as an amendment on April 14 and 15, 1871, after nine days of congressional debate on the bill had already taken place.70 Review of that debate provides useful context for present-day disputes on the scope of the clause.
Though the Republican Party controlled Congress in the spring of 1871, its power was waning. Republicans had lost supermajority status during the 1870 midterms, as Democrats gained seats in the South with the aid of the KKK.71 Faced with the possibility of further electoral losses, Republican members of Congress divided over the means of implementing Reconstruction. Radical elements of the party called for heightened national power to achieve equality between White and Black citizens, while moderate elements emphasized the necessity of rebuilding Southern state governments.72
This strategic and ideological rift played out in the debates over H.R. 320. Moderate Republicans objected to section 2 as an unconstitutional encroachment on states’ criminal jurisdiction.73 As originally written, the section punished conspiracies “to do any act in violation of the rights, privileges, or immunities of any person.”74 As some members of Congress pointed out, this provision would have enabled federal sanction against any crime committed by two or more individuals.75 In response to such critiques, Representative Shellabarger introduced an amendment to section 2 to “confine the authority of [the] law to the prevention of deprivations which shall attack the equality of rights of American citizens.”76 The House accepted the amendment.77
In the Senate, discussion focused on the length of authorization for the President to suspend habeas corpus, the possibility of holding localities liable for property damage resulting from riots, and the maintenance of a loyalty oath for those serving on federal juries.78 On April 14, shortly before the Senate’s final vote on the bill, Senator George Edmunds (R-VT) introduced the Support or Advocacy Clause as an amendment.79 Explaining that the suggestion resulted from an informal “consultation among gentlemen on the [drafting] committee,” Senator Edmunds noted that he “presume[d] there [would] be no objection” to the amendment.80 The amendment and the entirety of the discussion on it, as printed in the Congressional Globe, is as follows:
MR. EDMUNDS. . . . I move after the word “laws,” in line forty-three of section two on page 3, to insert these words:
Or by force, intimidation, or threats to prevent any citizen of the United States lawfully entitled to vote from giving his support or advocacy, in a lawful manner, toward or in favor of the election of any lawfully qualified person as an elector of President or Vice President in the United States, or as a member of the Congress of the United States, or to injure any such citizen in his person or property on account of such support or advocacy.
MR. TRUMBULL. There ought not to be any objection to that, I think.
The VICE PRESIDENT. The question is on this amendment of the Senator from Vermont.
Mr. CASSERLY. That is a new amendment, and rather a long one, and I should like to have it read again. Am I correct in understanding that it comes from the committee?
The VICE PRESIDENT. The Senator from Vermont stated that it did not come from the committee, but from a conference of members of the committee, the committee not having agreed upon it in a regular committee meeting. The amendment will be read, at the request of the Senator from California.
The Chief Clerk read the amendment.
The amendment was agreed to.81
The amendment passed in the House by a voice vote the next day.82 After additional debate on unrelated portions, both houses of Congress passed the bill.83 President Grant signed it into law on May 3, 1871.84
Both the text and legislative history of the Support or Advocacy Clause suggest that the clause was not merely remedial, but rather conferred a substantive right. The Support or Advocacy Clause, unlike other portions of section 2, was not constrained to violations of “equal protection of the laws.” Though Congress was unsure of its authority to regulate conspiracies generally, it “never doubted its authority to directly regulate interference in federal elections.”85 As Representative Burton C. Cook (R-IL) explained during debate, a citizen supporting or advocating a federal candidate “is exercising a right secured to him clearly by the fundamental law of this nation. Hence, a combination to deprive the citizen of that right, or to punish him for its exercise, is an offense against the United States, and may be so declared and punished by national law.”86 The apparently uncontroversial nature of the Support or Advocacy Clause seems to reflect that view.
In 1874, Congress authorized the revision of the United States Code.87 During the revision, the civil portions of section 2 of the Ku Klux Klan Act were rearranged into three subsections.88 The criminal portions of the Act were codified separately. Notably, Congress placed the criminal sanctions corresponding to the Support or Advocacy Clause in a separate statute, section 5520 of the Revised Statutes, apart from the sanctions corresponding to the equal protection provision, section 5519 of the Revised Statutes.89 The provisions were also analyzed separately by the Supreme Court, demonstrating that both legislators and judges viewed them as distinct.
The Supreme Court considered the constitutionality of section 5519 in 1883. In United States v. Harris,90 the Court concluded that Congress did not have authority under the Thirteenth or Fourteenth Amendments to enact section 5519.91 The Fourteenth Amendment authorized legislation restricting only state action, not purely private conduct.92 And the Thirteenth Amendment’s prohibition on slavery did not support the broad scope of the statute, which restricted conspiracies targeting White and Black citizens.93
The Court considered the constitutional justifications for the Support or Advocacy Clause the next year. In Ex parte Yarbrough,94 the Court upheld section 5520 as constitutional, holding that Congress had power to enact the legislation pursuant to Article I, Section 4 of the Constitution (the Elections Clause),95 the Fifteenth Amendment,96 and possibly also the structural requirements of the Constitution.97 The Court reasoned that the Elections Clause gave Congress the “power to protect the elections on which its existence depends from violence and corruption.”98 Congress could therefore “by law protect the act of voting, the place where it is done, and the man who votes, from personal violence or intimidation.”99 The passage of the Fifteenth Amendment supported this view, as it demonstrated that the right to vote “was not intended to be left within the exclusive control of the States.”100 Congress could therefore act to protect the right to vote.101 Congress’s power to do so, the Court explained, was “essential to the successful working of this government.”102 Yarbrough’s reasoning applies with equal force to the civil provision of the Support or Advocacy Clause. The Elections Clause, the Fifteenth Amendment, and structural considerations empower Congress to legislate to protect federal elections.
Though no published federal cases during the nineteenth century appear to have considered the civil Support or Advocacy Clause, cases reviewing federal prosecutions brought under the criminal version of the clause can provide useful context on both clauses’ meaning and operation.103 The civil and criminal versions of the Support or Advocacy Clause were near identical.104 Furthermore, criminal prohibitions tend to be interpreted narrowly because of the rule of lenity, making it possible that the civil Support or Advocacy Clause should be interpreted more robustly than the criminal statute.
United States v. Butler105 provides historical insight on the first question described in Part I — whether the Support or Advocacy Clause protects all citizens, or only those harmed due to discriminatory animus. The case involved the prosecution of a group accused of intimidating an African American citizen of South Carolina in the run-up to the 1876 federal election.106 Two of the four criminal charges were predicated upon section 5520 of the Revised Statutes, corresponding to the Support or Advocacy Clause; the other two were predicated upon section 5508 of the Revised Statutes,107 which criminalized conspiracies to “injure, oppress, threaten, or intimidate any citizen” in the “exercise or enjoyment” of a separate federal right.108 The federal jury instructions, reprinted in the Butler opinion, indicate that the section 5520 charges did not require a demonstration that the victim was a member of a protected class.109 The district court explained that section 5520 required a finding that the victim was targeted “on account of his having given support or advocacy” of a federal candidate,110 whereas “[t]he controlling element in the [section 5508 charges was] the race or color” of the victim.111 Butler thus suggests that a showing of discriminatory animus is not required in a Support or Advocacy Clause suit.
United States v. Goldman,112 decided the year after Butler, sheds light on the second and third questions related to the Support or Advocacy Clause. Years before the Supreme Court decided Yarbrough, the Circuit Court for the District of Louisiana in Goldman upheld the constitutionality of section 5520.113 The court reasoned that because Congress had the power, pursuant to the Elections Clause, to regulate the manner of holding federal elections, it could enact laws “to enable the voter to make a free and intelligent choice, and to express that choice freely at the ballot-box.”114 This power extended to the imposition of criminal punishment on those who conspired to threaten, coerce, or intimidate citizens seeking to support or advocate for candidates in federal elections.115
The Goldman court’s constitutional reasoning suggests an answer to the second question, of whether the Support or Advocacy Clause creates a substantive right or merely provides a remedy for violations of other laws. If Congress enacted the clause as a valid exercise of its authority to regulate federal elections, as the Goldman court held, then courts need not look to other provisions of law to give the clause meaning. The clause creates a standalone, substantive right.
Both Butler and Goldman provide insight on the third question, of whether the Support or Advocacy Clause applies to purely private conduct. Both cases involved prosecutions of private citizens. The courts considering their prosecutions did not require state action to find criminal liability,116 indicating that the Support or Advocacy Clause was understood at the time to extend to purely private acts.
The end of Reconstruction and the Democratic takeover of Congress led the civil Support or Advocacy Clause to fall into disuse by the last decade of the nineteenth century.117 However, courts have heard dozens of cases regarding other provisions of § 1985(3), leading to much confusion on the meaning of the Support or Advocacy Clause.
III. The Equal Protection Provision of § 1985(3)
Lower courts have erroneously constrained the Support or Advocacy Clause by applying limitations that are applicable only to other portions of § 1985(3).118 In the late twentieth century, the Court issued three major decisions on the equal protection provision of § 1985(3). Each decision narrowed the scope of relief under the provision. Despite the Court’s repeated explanation that its decisions were limited to the equal protection provision,119 lower courts have persisted in either ignoring the difference between120 or proactively conflating121 the equal protection provision and the Support or Advocacy Clause.
The more frequently litigated portion of § 1985(3), referred to here as the “equal protection provision,” creates a cause of action for injury caused by “two or more persons . . . [who] conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving . . . any person or class of persons of the equal protection of the laws.”122 A brief review of the decisions interpreting this provision is helpful to understand the later misapplication by lower courts.
In Griffin v. Breckenridge,123 the Supreme Court established a discriminatory animus requirement for claims brought under the equal protection provision.124 The Griffin Court determined that § 1985(3) was intended to apply to private conspiracies, in addition to conspiracies involving state action.125 The Court was hesitant, however, to interpret the statute in a manner that empowered the federal government to regulate all conspiracies, even those that were intrastate and purely private. The Court acknowledged the “constitutional shoals that would lie in the path of interpreting § 1985(3) as a general federal tort law.”126 In order to limit the equal protection provision, the Court required plaintiffs to establish “the kind of invidiously discriminatory motivation” reflected in the “language requiring intent to deprive of equal protection, or equal privileges and immunities.”127 Plaintiffs would have to demonstrate “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.”128
The constitutional concerns animating Griffin do not apply to the Support or Advocacy Clause. As the Court later explained in Kush v. Rutledge,129 the Support or Advocacy Clause “relate[s] to institutions and processes of the Federal Government.”130 The Griffin Court’s federalism-driven concerns about a general federal tort law therefore do not apply to the Support or Advocacy Clause.131 Plaintiffs suing under the clause therefore need not allege discriminatory animus.132
In Great American Federal Savings & Loan Ass’n v. Novotny,133 the Court held that the equal protection provision of § 1985(3) “provides no substantive rights itself; it merely provides a remedy for violation of the rights it designates.”134 The opinion discussed “section 1985(3)” broadly, but discussed only statutory language and precedents related to the equal protection provision.135
Given courts’ frequent failure to distinguish between the different portions of § 1985(3), it is near certain that Novotny limits only the equal protection provision of § 1985(3). Indeed, the equal protection provision refers to other substantive laws (by referencing a violation of the “equal protection of the laws”), but the Support or Advocacy Clause contains no similar reference. Other portions of § 1985, such as § 1985(1) and (2),136 similarly contain no invocation of the equal protection of the laws, and no cases have held that those provisions are solely remedial.137
In Griffin, the Court also rejected a state action requirement for claims brought under the equal protection provision.138 Unlike the analysis on discriminatory animus, the Court’s reasoning on state action applies equally well to the Support or Advocacy Clause. As to text, the Griffin Court explained that nothing on the face of the equal protection provision spoke to state action.139 Similarly, nothing in the text of the Support or Advocacy Clause requires state action. As to related statutes, the Griffin Court pointed to the criminal counterpart of § 1985(3), which had not been limited to state action.140 Likewise, the criminal counterpart of the Support or Advocacy Clause was not limited to state action.141 The Griffin Court also noted that other portions of the Ku Klux Klan Act of 1871 attempted to regulate state action, making it less likely that the equal protection provision (or the Support or Advocacy Clause) was intended to do the same.142 Finally, as to the legislative history of the equal protection provision, the Griffin Court explained that during floor debates “there was no suggestion whatever that liability would not be imposed for purely private conspiracies.”143 This also holds true for the Support or Advocacy Clause’s floor debate.144 Unlike the discriminatory animus and substantive rights issues discussed above, the Court’s reasoning regarding the equal protection provision’s relationship to state action applies equally well to the Support or Advocacy Clause.
There is a subset of cases in which a plaintiff bringing a claim under the equal protection provision of § 1985(3) must allege state action. This occurs when the plaintiff claims injury to a right that is guaranteed only against the state — for example, the First Amendment’s guarantee against state interference with free speech. As the Supreme Court explained in United Brotherhood of Carpenters, Local 610 v. Scott,145 a purely private conspiracy cannot deprive someone of the equal protection of the First Amendment.146 Therefore, the state must have been involved in some way for the First Amendment to be implicated at all.147 This wrinkle does not arise for claims brought under the Support or Advocacy Clause because, as was discussed above, the clause does not require the plaintiff to allege violations of a separate substantive right.148 Rather, the substantive right is conferred by the statute itself and is guaranteed to the citizen against other citizens, rather than against the state.
Despite the Supreme Court’s focus on the equal protection provision in the above cases, lower courts soon divided on whether the Court’s reasoning should also apply to the Support or Advocacy Clause. Several circuit and district courts have since analyzed voting-related claims under the framework of the equal protection provision,149 while the Fifth Circuit has instead applied the Support or Advocacy Clause.150
The Eighth Circuit has considered voting-related conspiracies under both the equal protection provision and the Support or Advocacy Clause. In Means v. Wilson,151 the court allowed a claim under the equal protection provision, but its reasoning also supports a robust interpretation of the Support or Advocacy Clause. The court stated that “[t]he right to vote is fundamental to representative government,” and “Congress has the power to guarantee that right by statute.”152 Congress can therefore regulate private conspiracies that impinge upon the right to vote.153 Statutory protection of that specific federal right does not raise the specter of a general federal tort law, as was the Court’s concern in Griffin.154
Despite this precedent, the Eighth Circuit undermined the Support or Advocacy Clause fifteen years later in Gill v. Farm Bureau Life Insurance Co.155 The court refused to consider the plaintiff’s late-raised Support or Advocacy Clause claim because, it held, “[t]he independent constitutional right relating to federal elections . . . is limited . . . to cast[ing] a ballot and hav[ing] it honestly counted.”156 The court instead focused on the equal protection provision, holding that the plaintiff had alleged a First Amendment violation that was subject to Carpenters’s state action requirement.157
The Eighth Circuit then misapplied Gill in 2004. In Federer v. Gephardt,158 the court quoted Gill for the proposition that the “essence” of a Support or Advocacy Clause claim “is the assertion of a First Amendment type right vindicating advocacy and association.”159 The court did not acknowledge that the quoted material came from the portion of Gill that discussed the equal protection provision. The Eighth Circuit thus improperly conflated the remedial nature of the equal protection provision with the Support or Advocacy Clause, which instead confers a substantive right.
In contrast, the Fifth Circuit has recognized the Support or Advocacy Clause as providing a freestanding substantive right. In Paynes v. Lee,160 the plaintiff was permitted to seek damages against defendants who had allegedly attempted to intimidate the plaintiff from registering to vote.161 The Fifth Circuit distinguished the Support or Advocacy Clause from the equal protection provision, explaining that “[t]he interference with a Federally protected right to vote . . . had the specific attention of Congress,” as demonstrated by the Ku Klux Klan Act’s creation of a “Federal right . . . to recover damages for interfering with Federal voting rights.”162 This right to vote was to be construed broadly: “The right to be free from threatened harm and the right to be protected from violence for an attempted exercise of a voting right are no less protected than the right to cast a ballot on the day of the election.”163
Lower courts should adopt the Fifth Circuit’s approach. The Supreme Court’s requirements related to the equal protection provision have been incorrectly extended to the Support or Advocacy Clause by lower federal courts. Courts should acknowledge the distinct nature of the Support or Advocacy Clause in order to preserve its utility.
IV. The Support or Advocacy Clause Today
Members of Congress recently noted that despite the elimination of many formal barriers to voting, “the integrity of today’s elections is threatened by newer tactics aimed at suppressing voter turnout,” such as efforts to “intimidate the electorate.”164 New legislation could help to tackle the myriad problems facing voting rights, including racially discriminatory voter suppression. In the absence of such legislation, however, the Support or Advocacy Clause can be a useful existing tool.
Modern voter intimidation and suppression efforts are often driven by private actors, including political campaigns and their affiliates. For example, just before the 2018 midterm election, flyers were distributed in Milwaukee, Wisconsin, “falsely informing residents that U.S. Immigration and Customs Enforcement (ICE) would actively patrol polling stations and detain anyone without ID.”165 During the 2016 presidential election, voter intimidation occurred at various scales. On one end of the spectrum, private actors reportedly pulled hijab-wearing voters out of line to vote in Michigan166 and used bullhorns to yell at voters waiting at a polling place in Florida.167 On the other, political consultant Roger Stone’s organization Stop the Steal was sued in Ohio for an alleged “coordinated campaign of vigilante voter intimidation.”168
The contemporary history of voter intimidation stretches further back, with reports of poll watchers photographing voters’ license plates in Wisconsin in 2012,169 of protestors “hover[ing] near voters” and “block[ing] and disrupt[ing] lines of voters” in Texas in 2010,170 and of a state committeeman hiring a private investigator to interrogate Hispanic residents about their right to vote in New Mexico in 2008.171 From 1982 until 2018, the Republican National Committee (RNC) was subject to a consent decree due to, among other offenses, the RNC’s alleged enlistment of “off-duty sheriffs and police officers to intimidate voters by standing at polling places in minority precincts during voting with ‘National Ballot Security Task Force’ armbands,” and, in some cases, firearms.172
Many of these efforts have racial overtones, but might not result in the sort of evidence that could support a finding of discriminatory animus in court.173 Furthermore, there is no guarantee that the federal government will prioritize criminal prosecution or civil sanctions against violators. Therefore, it is useful to have a private cause of action, like the Support or Advocacy Clause, that enables suit against private conspirators without the need to allege class-based animus.
Unfortunately, confusion over the exact requirements of the Support or Advocacy Clause, as opposed to the equal protection provision of § 1985(3), continue to plague judicial analysis. Should the Support or Advocacy Clause allow suit only in cases involving discriminatory, class-based animus? Does the clause confer a substantive right, or is it purely remedial? Must a plaintiff seeking relief under the clause allege some form of state action? There is no present consensus, as demonstrated by the divergent outcomes in League of United Latin American Citizens (LULAC) v. Public Interest Legal Foundation (PILF)174 and Cockrum v. Donald J. Trump for President, Inc.,175 both decided in the Eastern District of Virginia.
LULAC v. PILF involved claims against an organization that published reports in 2016 and 2017 claiming that registered Virginia voters were committing voting-related felonies.176 The 2017 report included the names, home addresses, and telephone numbers of the plaintiffs and other private individuals.177 The court denied a motion to dismiss the plaintiff’s Support or Advocacy Clause claim, explaining that unlike the equal protection provision, the Support or Advocacy Clause “does not require allegations of a race or class-based, invidiously discriminatory animus or violation of a separate substantive right.”178
The Cockrum court took a different approach. In that case, several individuals sued then–presidential candidate Donald Trump’s campaign committee, alleging that the Trump campaign had conspired with Russian intelligence operatives who had obtained the plaintiffs’ personal information through a hack of the Democratic National Committee’s servers.179 The Cockrum court stated that all of § 1985(3) is “purely remedial” and that the plaintiffs were alleging a First Amendment violation that could not succeed without a showing of state action.180 The court justified this conclusion by pointing to Yarbrough, which upheld the criminal version of the Support or Advocacy Clause as constitutional based on the Elections Clause and the Fifteenth Amendment.181 The court claimed that Yarbrough proved the Support or Advocacy Clause did not create a substantive right, but rather provided a remedy for a separate constitutional violation.182
The Cockrum court misinterpreted Yarbrough. That case held that Congress’s creation of a substantive right in the Support or Advocacy Clause was necessary and proper pursuant to Congress’s constitutional powers under Article I, Section 4 of the Constitution183 and the Fifteenth Amendment.184 Passing a statute on the basis of a constitutional power — as Congress did with the Support or Advocacy Clause — is distinct from creating a solely remedial statute only to enforce a constitutional right. Without this distinction, Congress could never be understood to have created standalone statutory rights; instead, every statute would merely be framed as a remedy for an underlying constitutional right.185
The Cockrum court’s interpretation makes even less sense given the Ku Klux Klan Act’s history. Congress passed the Act in 1871, decades before the First Amendment was incorporated against the states.186 It is highly unlikely that the Reconstruction Congress would have included, in an act otherwise responding to the Ku Klux Klan, a provision remedying First Amendment violations by the federal government. Regarding the Support or Advocacy Clause as a remedy for First Amendment violations is ahistorical and unnecessarily limiting.
After more than a century of litigation, then, the correct meaning and application of the Support or Advocacy Clause is still unsettled. Much of the confusion can and must be clarified by distinguishing, as the Supreme Court has, between the equal protection provision and the Support or Advocacy Clause of § 1985(3). The history and early adjudication of the clause indicate that it (1) protects all citizens, not only victims of class-based discriminatory animus, (2) confers a substantive right to be free of injury caused by conspiratorial threat, coercion, or intimidation due to one’s support or advocacy of a federal candidate, and (3) permits action against purely private actors. Subsequent judicial opinions on other portions of § 1985(3) do not change this analysis; instead, they suggest that the Support or Advocacy Clause ought to be understood as distinct from the equal protection provision of the statute. The clause was created to protect voters from private intimidation and can still be used for that purpose today.
As the Supreme Court has observed, “[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.”187 Congress, in a time of national crisis, created a federally guaranteed right to support or advocate for federal candidates. It provided citizens with a robust cause of action: to bring suit for damages against those who conspired to violate that right. Congress’s guarantee is urgently important today, as electoral freedom is threatened by ever more insidious forms of intimidation. Civil rights advocates have correctly recognized that the Support or Advocacy Clause is a useful tool to safeguard voting rights. Federal courts should do the same.