COCKRUM et al v. DONALD J. TRUMP FOR PRESIDENT, INC. et al

Filing 57

NOTICE of Filing by ROY COCKRUM, SCOTT COMER, ERIC SCHOENBERG (Attachments: # 1 Exhibit Arizona Democratic Party v Arizona Republican Party, # 2 Exhibit North Carolina Democratic Party v North Carolina Republican Party, # 3 Exhibit Daschle v Thune)(Berwick, Benjamin)

Case 1:17-cv-01370-ESH Document 57 Filed 05/18/18 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ROY COCKRUM, SCOTT COMER, and
ERIC SCHOENBERG,
Plaintiffs,
v.
DONALD J. TRUMP FOR PRESIDENT,
INC., and ROGER STONE,
Defendants.

)
)
)
)
)
)
) Civil Action No. 1:17-cv-1370-ESH
)
)
)
)
)
)

NOTICE OF FILING
Pursuant to the Court’s direction, Plaintiffs submit three unpublished twenty-first century
district court opinions corroborating the view that the support-and-advocacy clauses of 42 U.S.C.
1985(3)1 create causes of action against private parties, as established in Ex Parte Yarbrough,
110 U.S. 651 (1884), and Paynes v. Lee, 377 F.2d 61 (5th Cir. 1967). The three cases are:

•

Arizona Democratic Party v. Arizona Republican Party et al, 2016 WL 8669978, at *5
n.4 (“ARP and the Trump Campaign argue that an action under 42 U.S.C. § 1985(3)
requires a showing of racial animus and that the specific provision invoked by Plaintiff—
the “support and advocacy clause”—cannot be applied against a non-state actor. (GOP
Resp. at 17-19.) Plaintiff disagrees on both counts. (Reply to GOP at 4-8.) Again, the
plain language of the statute does not require either of the elements proposed by ARP and
the Trump Campaign.”)

1

The relevant clauses of 42 U.S.C. 1985(3) were originally found in Section 2 of the Civil
Rights Act of 1871 and then codified at Section 5520 of the Revised Statutes (1877).
1

Case 1:17-cv-01370-ESH Document 57 Filed 05/18/18 Page 2 of 3

•

North Carolina Democratic Party v. North Carolina Republican Party et al., 1:16-CV1288 (D.N.C. 2016) at 4 (“[V]oters are entitled to cast their ballots without fear of
reprisal or threat of physical harm. See 52 U.S.C. § 10307(b) (making it illegal for any
person, “whether acting under color of law or otherwise,” to “intimidate, threaten, or
coerce . . . any person for voting”); 42 U.S.C. § 1985(3). On Election Day, if it becomes
apparent that agents of any defendant or supporters encouraged by any defendant are
making an effort to intimidate minority voters or to further incite intimidation of voters,
the plaintiff may renew the motion.”)

•

Daschle v. Thune, CIV 04-4177 (D.S.D. November 2, 2004) (granting temporary relief
after finding that plaintiffs were likely to succeed on the merits of claims including a
voter-intimidation claim against a private party under 42 U.S.C. § 1985(3)).

The two cases in which political parties are named defendants are also brought against
other private-party defendants.

Date: May 18, 2018

/s/ Benjamin L. Berwick
BENJAMIN L. BERWICK (D.D.C. Bar No. MA0004)
United to Protect Democracy
10 Ware St.
Cambridge, MA 02138
[phone]
[e-mail]
IAN BASSIN (NY Attorney Registration No.
4683439)
United to Protect Democracy
222 Broadway, 19th Floor
New York, NY 10038
[e-mail]

2

Case 1:17-cv-01370-ESH Document 57 Filed 05/18/18 Page 3 of 3

JUSTIN FLORENCE (D.C. Bar No. 988953)
[e-mail]
ANNE TINDALL (D.C. Bar. No. 494607)
[e-mail]
United to Protect Democracy
2020 Pennsylvania Ave. NW, #163
Washington, DC 20006
[phone]
NANCY GERTNER (MA Bar No. 190140)
Fick & Marx
100 Franklin Street, 7th floor
Boston, MA 02110
[phone]
[e-mail]
RICHARD PRIMUS (D.C. Bar No. 472223)
The University of Michigan Law School*
625 S. State Street
Ann Arbor, MI 48109
[phone]
[e-mail]
STEVEN A. HIRSCH (CA Bar No. 171825)
[e-mail]
Keker, Van Nest & Peters LLP
633 Battery Street
San Francisco, CA 94111-1809
[phone]
* For identification purposes.

3

Case 1:17-cv-01370-ESH Document 57-1 Filed 05/18/18 Page 1 of 11
Arizona Democratic Party v. Arizona Republican Party, Not Reported in Fed. Supp. (2016)
2016 WL 8669978

2016 WL 8669978
Only the Westlaw citation is currently available.
NOT FOR PUBLICATION
United States District Court, D. Arizona.
ARIZONA DEMOCRATIC PARTY, Plaintiff,
v.
ARIZONA REPUBLICAN PARTY, et al.,
Defendants.
No. CV-16-03752-PHX-JJT
|
Signed 11/04/2016
Attorneys and Law Firms
Dawn L. Smalls, Boies Schiller & Flexner LLP, New
York, NY, Marc E. Elias, Perkins Coie LLP, Michael
Julian Gottlieb, Boies Schiller & Flexner LLP,
Washington, DC, Sarah Rae Gonski, Perkins Coie LLP,
Phoenix, AZ, for Plaintiff.
Timothy Andrew LaSota, Timothy A. LaSota PLC, Kory
A. Langhofer, Thomas James Basile, Statecraft PLLC,
Phoenix, AZ, for Defendants.

ORDER
Honorable John J. Tuchi, United States District Judge
*1 In response to what it alleges to be a call for the
intimidation of voters in next week’s presidential election
by Donald J. Trump for President, Inc. (“Trump
Campaign”), the Arizona Republican Party (“ARP”),
Roger J. Stone, Jr., and Stop the Steal, Inc., the Arizona
Democratic Party (“ADP”) filed this lawsuit a mere eight
days before the election. Plaintiff ADP seeks injunctive
relief for violations of the Ku Klux Klan Act of 1871, 42
U.S.C. § 1985(3), and Section 11(b) of Voting Rights Act
of 1965, 52 U.S.C. § 10307(b). (Doc. 1, Compl.) After the
Court set an expedited briefing and hearing schedule
(Doc. 7), Plaintiff filed a Motion for Temporary
Restraining Order and/or Preliminary Injunction (Doc. 10,
Mot.), Defendants ARP and the Trump Campaign filed a
Response (Doc. 15, GOP Resp.), and Plaintiff filed a
Reply thereto (Doc. 22, Reply to GOP).
Plaintiff was only able to serve Defendant Stop the Steal
on November 2, 2016 (Doc. 19), the day its Response to

Plaintiff’s Motion would have been due, and Plaintiff did
not file a certificate of service with regard to Defendant
Mr. Stone prior to the Hearing (see Doc. 22-1). On
November 3, 2016, the Court held a Hearing on Plaintiff’s
Motion. (Doc. 24.) Stop the Steal and Mr. Stone appeared
through counsel at the Hearing for the purpose of
contesting both service and the Court’s jurisdiction over
them in this matter. The Court denied Stop the Steal’s
motion to dismiss and reserved judgment on that of Mr.
Stone. (Doc. 24.) The Court heard evidence and argument
from all parties on Plaintiff’s Motion and ordered briefing
from Stop the Steal. (Doc. 24.) On November 4, 2016,
Stop the Steal and Mr. Stone filed a Response (Doc. 27,
STS Resp.), and Plaintiff filed a Reply thereto (Doc. 28,
Reply to STS).
Considering all the evidence and arguments of the parties
and for the reasons that follow, the Court will deny Mr.
Stone’s Motion to Dismiss (Doc. 24) and deny Plaintiff’s
Motion for Temporary Restraining Order and/or
Preliminary Injunction (Doc. 10).

I. LEGAL ANALYSIS
A. Standing
To bring a judicable lawsuit into Federal Court, Article III
of the Constitution requires that one have “the core
component of standing.” Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992). To satisfy Article III’s standing
requirements, a plaintiff must show that he suffered a
“concrete and particularized” injury that is “fairly
traceable to the challenged action of the defendant,” and
that a favorable decision would likely redress the injury.
Friends of the Earth, Inc. v. Laidlaw Environmental
Servs. (TOC), Inc., 528 U.S. 167, 180 (2000). In the
complaint, the plaintiff must “alleg[e] specific facts
sufficient” to establish standing. Schmier v. U.S. Court of
Appeals for Ninth Circuit, 279 F.3d 817, 821 (9th Cir.
2002). Accordingly, courts should dismiss a plaintiff’s
complaint if he has failed to provide facts sufficient to
establish standing. See, e.g., Chandler v. State Farm Mut.
Auto. Ins. Co., 598 F.3d 1115, 1123 (9th Cir. 2010).
*2 An organization has standing “to seek judicial relief
from injury to itself and to vindicate whatever rights and
immunities the association itself may enjoy.” Warth v.
Seldin, 422 U.S. 490, 511 (1975). An organization also
has “associational standing” to bring suit on behalf of its
members “when its members would otherwise have
standing to sue in their own right, the interests at stake are
germane to the organization’s purpose, and neither the
claim asserted nor the relief requested requires the

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

1

Case 1:17-cv-01370-ESH Document 57-1 Filed 05/18/18 Page 2 of 11
Arizona Democratic Party v. Arizona Republican Party, Not Reported in Fed. Supp. (2016)
2016 WL 8669978

participation of individual members in the lawsuit.”
Friends of the Earth, Inc., 528 U.S. at 181 (citing Hunt v.
Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343
(1977)).
In the Complaint, Plaintiff alleges it has standing to bring
this action both on behalf of itself and its members
“because it is supporting many candidates in the
Presidential, Senate, House, and numerous statewide
elections” and will suffer immediate and irreparable
injury if Defendants’ alleged conspiracy to intimidate
voters “succeeds in disrupting or changing the results of
the election.” (Compl. ¶ 14.) This is sufficient to establish
Plaintiff’s standing, see Crawford v. Marion Cnty.
Election Bd., 553 U.S. 181, 189 n.7 (2008), and
Defendants do not challenge Plaintiff’s standing to bring
its claims in this matter.

B. Mr. Stone’s Motion to Dismiss for Lack of
Service and Jurisdiction
At the Hearing, Mr. Stone, through counsel, moved to
dismiss Plaintiff’s claims against him for lack of service
and lack of jurisdiction.1 (Tr. at 43.) Since then, Plaintiff
has filed a certificate of service with regard to Mr. Stone
(Doc. 26), so the Court will deny as moot his motion with
regard to service. The Court addresses his motion with
regard to jurisdiction here.
In order for a federal court to adjudicate a matter, it must
have jurisdiction over the parties. Ins. Corp. of Ir. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 701
(1982). The party bringing the action has the burden of
establishing that personal jurisdiction exists. Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)
(citing McNutt v. Gen. Motors Acceptance Corp., 298
U.S. 178, 182-83 (1936)); Data Disc, Inc. v. Sys. Tech.
Assocs., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977). When
a defendant moves, prior to trial, to dismiss a complaint
for lack of personal jurisdiction, the plaintiff must “
‘come forward with facts, by affidavit or otherwise,
supporting personal jurisdiction.’ ” Scott v. Breeland, 792
F.2d 925, 927 (9th Cir. 1986) (quoting Amba Mktg. Sys.,
Inc. v. Jobar Int’l, Inc., 551 F.2d 784, 787 (9th Cir.
1977)).
Because there is no statutory method for resolving the
question of personal jurisdiction, “the mode of
determination is left to the trial court.” Data Disc, 557
F.2d at 1285 (citing Gibbs v. Buck, 307 U.S. 66, 71-72
(1939)). Where, as here, a court resolves the question of
personal jurisdiction upon motions and supporting
documents, the plaintiff “must make only a prima facie
showing of jurisdictional facts through the submitted

materials in order to avoid a defendant’s motion to
dismiss.” Id. In determining whether the plaintiff has met
that burden, the “uncontroverted allegations in [the
plaintiff’s] complaint must be taken as true, and conflicts
between the facts contained in the parties’ affidavits must
be resolved in [the plaintiff’s] favor.” Rio Props., Inc. v.
Rio Int’l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002)
(citation omitted).
*3 To establish personal jurisdiction over a nonresident
defendant, a plaintiff must show that the forum state’s
long-arm statute confers jurisdiction over the defendant
and that the exercise of jurisdiction comports with
constitutional principles of due process. Id.; Omeluk v.
Langsten Slip & Batbyggeri A/S, 52 F.3d 267, 269 (9th
Cir. 1995). Arizona’s long-arm statute allows the exercise
of personal jurisdiction to the same extent as the United
States Constitution. See Ariz. R. Civ. Proc. 4.2(a);
Cybersell v. Cybersell, 130 F.3d 414, 416 (9th Cir. 1997);
A. Uberti & C. v. Leonardo, 892 P.2d 1354, 1358 (Ariz.
1995) (stating that under Rule 4.2(a), “Arizona will exert
personal jurisdiction over a nonresident litigant to the
maximum extent allowed by the federal constitution”).
Thus, a court in Arizona may exercise personal
jurisdiction over a nonresident defendant so long as doing
so accords with constitutional principles of due process.
Cybersell, 130 F.3d at 416.
Due process requires that a nonresident defendant have
sufficient minimum contacts with the forum state so that
“maintenance of the suit does not offend ‘traditional
notions of fair play and substantial justice.’ ” Int’l Shoe
Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting
Milliken v. Meyer, 311 U.S. 457, 463 (1940)); see also
Data Disc, 557 F.2d at 1287. Courts recognize two bases
for personal jurisdiction within the confines of due
process: “(1) ‘general jurisdiction’ which arises when a
defendant’s contacts with the forum state are so pervasive
as to justify the exercise of jurisdiction over the defendant
in all matters;2 and (2) ‘specific jurisdiction’ which arises
out of the defendant’s contacts with the forum state giving
rise to the subject litigation.” Birder v. Jockey’s Guild,
Inc., 444 F. Supp. 2d 1005, 1008 (C.D. Cal. 2006).
Here, Plaintiff contends that the Court has specific
jurisdiction over Mr. Stone through his actions in
conjunction with and as a volunteer for Stop the Steal.
The issue of whether specific jurisdiction will lie turns on
the extent of the defendant’s contacts with the forum and
the degree to which the plaintiff’s suit is related to those
contacts. Yahoo! Inc. v. La Ligue Contre Le Racisme Et
L’Antisemitisme, 433 F.3d 1199, 1210 (9th Cir. 2006).
The Ninth Circuit uses the following approach in making
this evaluation: (1) the nonresident defendant must do

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

2

Case 1:17-cv-01370-ESH Document 57-1 Filed 05/18/18 Page 3 of 11
Arizona Democratic Party v. Arizona Republican Party, Not Reported in Fed. Supp. (2016)
2016 WL 8669978

some act in or consummate some transaction with the
forum, or perform some act by which it purposefully
avails itself of the privilege of conducting activities in the
forum, thereby invoking the benefits and protections of its
laws; (2) the claim must be one which arises out of or
results from the defendant’s forum-related activities; and
(3) exercise of jurisdiction must be reasonable. Data Disc,
557 F.2d at 1287. All three requirements must be satisfied
for the exercise of jurisdiction to comport with
constitutional principles of due process. Omeluk, 52 F.3d
at 270. The plaintiff bears the burden of establishing the
first two prongs of the test. Schwarzenegger v. Fred
Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). If
the plaintiff does so, the burden shifts to the defendant to
set forth a “compelling case” that the exercise of
jurisdiction would be unreasonable. Mavrix Photo, Inc. v.
Brand Tech’s., Inc., 647 F.3d 1218, 1228 (9th Cir. 2011)
(citing Burger King Corp. v. Rudzewicz, 471 U.S. 462,
476-78 (1985)).
With regard to the first element, the plaintiff must show
the defendant “either (1) ‘purposefully availed’ himself of
the privilege of conducting activities in the forum, or (2)
‘purposefully directed’ his activities toward the forum.”
Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1155 (9th
Cir. 2006) (quoting Schwarzenegger, 374 F.3d at 802).
The Ninth Circuit has explained that in cases involving
tortious conduct, as here, the purposeful direction analysis
is most commonly applied. Mavrix Photo, 647 F.3d at
1228. Purposeful direction is determined by using the
“effects” test that was developed in Calder v. Jones, 465
U.S. 783, 789-90 (1984). The effects test requires that
“the defendant allegedly must have (1) committed an
intentional act, (2) expressly aimed at the forum state, (3)
causing harm that the defendant knows is likely to be
suffered in the forum state.” Yahoo!, at 1206.
*4 A defendant’s intentional act in the forum state does
not necessarily have to be wrongful or tortious. “In any
personal jurisdiction case we must evaluate all of a
defendant’s contacts with the forum state, whether or not
those contacts involve wrongful activity by the
defendant.” Yahoo!, 433 F.3d at 1207. Courts must
consider “the extent of the defendant’s contacts with the
forum and the degree to which the plaintiff’s suit is
related to those contacts. A strong showing on one axis
will permit a lesser showing on the other.” Id. at 1210.
Plaintiff alleges and proffers some evidence that Mr.
Stone and Stop the Steal have “engaged in the recruitment
of individuals to come into the State of Arizona for the
purpose of engaging in election monitoring and exit poll
activities on Election Day in Arizona,” including signing
up 107 volunteers as of November 1, 2016, and that Mr.

Stone has publicly and repeatedly tied himself to Stop the
Steal. (Tr. at 47-50; Reply to STS at 3-6.) Though Mr.
Stone’s counsel argued that Mr. Stone is distinct from
Stop the Steal in terms of these actions (Tr. at 46), Mr.
Stone produced no evidence to contradict Plaintiff’s
evidence. The Court finds that, through the acts of
recruiting and organizing exit poll takers to come to
Arizona polling places, Mr. Stone has sufficient contacts
with Arizona. Furthermore, it is undisputed that Plaintiff’s
claims arise from those contacts. Because Mr. Stone made
no argument that the Court’s exercise of jurisdiction
would be unreasonable, the Court finds it has jurisdiction
over Mr. Stone in this matter. Accordingly, the Court will
deny Mr. Stone’s oral motion to dismiss on that basis.

C. Plaintiff’s Motion for Injunctive Relief
The Supreme Court has observed that “a preliminary
injunction is an extraordinary and drastic remedy, one that
should not be granted unless the movant, by a clear
showing, carries the burden of persuasion.” Mazurek v.
Armstrong, 520 U.S. 968, 972 (1997) (internal quotation
and citation omitted). “A plaintiff seeking a preliminary
injunction must establish that he is likely to succeed on
the merits, that he is likely to suffer irreparable harm in
the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the
public interest.” Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7, 20 (2008) (citations omitted); see also Garcia
v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015). The
Ninth Circuit Court of Appeals, employing a sliding scale
analysis, has also stated that, where there are “serious
questions going to the merits” such that a plaintiff has not
necessarily demonstrated a “likelihood of success,” “a
hardship balance that tips sharply toward the plaintiff can
support issuance of an injunction, assuming the other two
elements of the Winter test are also met.” Drakes Bay
Oyster Co. v. Jewell, 747 F.3d 1073, 1085 (9th Cir. 2013)
(internal quotations and citations omitted).

1. Likelihood of Success on the Merits
Plaintiff brings claims under both the Voting Rights Act
and Ku Klux Klan Act. Section 11(b) of the Voting
Rights Act provides, “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 “for urging or
aiding any person to vote or attempt to vote.” 52 U.S.C. §
10307(b).3 The statute does not exclude a private right of
action for injunctive relief, as Plaintiff has brought here.

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

3

Case 1:17-cv-01370-ESH Document 57-1 Filed 05/18/18 Page 4 of 11
Arizona Democratic Party v. Arizona Republican Party, Not Reported in Fed. Supp. (2016)
2016 WL 8669978

Allen v. State Bd. of Elections, 393 U.S. 544, 555-56 &
n.18 (1969); see also 28 U.S.C. § 1343(a)(4).
*5 The Ku Klux Klan Act provides that an injured party
has a right of action for recovery of damages against a
person who, with another person, “conspire[s] 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.” 42 U.S.C. § 1985(3).4
Arizona law also includes an anti-voter intimidation
provision, which states it is a class 1 misdemeanor for a
person, directly or indirectly, to knowingly “practice
intimidation” or “inflict or threaten infliction” of “injury,
damage, harm or loss” in order “to induce or compel” a
voter “to vote of refrain from voting for a particular
person or measure at any election provided by law, or on
account of such person having voted or refrained from
voting at an election.” A.R.S. § 16-1013. In addition,
Arizona more stringently controls the area within 75 feet
of a polling place as posted by election officials. A.R.S. §
16-515. At any time the polls are open (except for the
purpose of voting and for election officials), only “one
representative5 at any one time of each political party
represented on the ballot who has been appointed by the
county chairman of that political party and the challengers
allowed by law” may be present within the 75-foot limit,
and “[v]oters having cast their ballots shall promptly
move outside” the 75-foot limit. A.R.S. § 16-515(A).
Election officials, party representatives and challengers
authorized by law to be within the 75-foot limit “shall not
wear, carry or display materials that identify or express
support for or opposition to a candidate, a political party
or organization, a ballot question or any other political
issue and shall not electioneer” within the 75-foot limit.
A.R.S. § 16-515(F). The statute defines “electioneering”
as expressing support for or against a political party,
candidate or ballot measure “knowingly, intentionally, by
verbal expression and in order to induce or compel
another person to vote in a particular manner or refrain
from voting.” A.R.S. § 16-515(I). The statute also
provides that no person shall take photographs or videos
while within the 75-foot limit. A.R.S. § 16-515(G). A
violation of any of these provisions is a class 2
misdemeanor. A.R.S. § 16-515(H).
For Plaintiff’s claim under the Voting Rights Act,
Plaintiff must demonstrate that Defendants acted or
attempted to intimidate, threaten or coerce a person for
voting or attempting to vote; similarly, for Plaintiff’s
claim under the Ku Klux Klan Act, Plaintiff must

demonstrate that Defendants conspired to prevent a
person from voting through force, intimidation or threat.
Plaintiff claims that Defendants’ statements to their
constituents urging them to be present and observe the
activities of other voters at polling places, to follow other
voters and interrogate them as to their votes, to record
other voters’ license plates, to photograph and
video-record other voters, and to call 911 if they suspect
someone has engaged in voter fraud constitute at least an
attempt to intimidate and/or threaten voters for voting or
attempting to vote. (E.g., Compl. ¶¶ 49, 51, 58.) Plaintiff
also claims that the plan by Mr. Stone and Stop the Steal
to conduct exit polls at carefully selected polling places is
merely a pretext for intimidating minority voters. (E.g.,
Compl. ¶¶ 36-39.)

a. Statements of the Arizona Republican Party
*6 In conjunction with its claims against ARP, Plaintiff
proffers evidence that, in a press release, ARP Chairman
Robert Graham stated that the party’s credentialed poll
watchers “will be the eyes and ears of the GOP to look for
those who show up with multiple ballots.” (Doc. 11-2 at
6-8, Gonski Decl. Ex. 2.) Acknowledging that state law
prohibits talking to voters or taking photographs in
polling places, Mr. Graham stated that credentialed poll
watchers are “still free to follow voters out into the
parking lot, ask them questions, take their pictures and
photograph their vehicles and license plate.” (Gonski
Decl. Ex. 2.) ARP spokesman Tim Sifert added that
credentialed poll watchers are “free to go outside that
75-foot limit” and “[t]hat’s where they can turn on their
phone to take video or pictures or something like that.”
(Gonski Decl. Ex. 2.) Mr. Graham also stated that, if they
believe a felony is in progress, credentialed poll watchers
can call 911. (Gonski Decl. Ex. 2.) Plaintiff claims that
these statements amount to a call for ARP’s credentialed
poll watchers to intimidate voters at polling places.
Moreover, Plaintiff points to evidence that ARP is
flooded with requests from people who would like to
become credentialed poll watchers in the upcoming
election—some of whom, Plaintiff asserts, the Trump
Campaign recruited—to argue that ARP is cooperating
with the Trump Campaign to intimidate voters on a wide
scale.
Mr. Graham and Mr. Sifert made their statements in the
context of a new Arizona law, A.R.S. § 16-1005(H)-(I),
which prohibits a practice called “ballot harvesting,” or
collecting other people’s ballots (with some exceptions,
including family members and caregivers) and delivering
them to polling places.6 The press release makes the

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

4

Case 1:17-cv-01370-ESH Document 57-1 Filed 05/18/18 Page 5 of 11
Arizona Democratic Party v. Arizona Republican Party, Not Reported in Fed. Supp. (2016)
2016 WL 8669978

context of the ARP officials’ statements clear; Mr.
Graham states that the ARP’s credentialed poll watchers
are looking “for those who show up with multiple
ballots.” (Gonski Decl. Ex. 2.) Contrary to Plaintiff’s
suggestion, nothing in these officials’ statements to the
press indicates that ARP is training or otherwise
instructing its credentialed poll watchers, or anyone else,
to follow voters to their cars or take their photographs for
reasons other than suspected ballot harvesting. Both
officials also state that Arizona law prohibits talking to
voters or taking photographs at polling places, that is,
within the 75-foot limit. (Gonski Decl. Ex. 2; see also
Doc. 25, Transcript of Nov. 3, 2016 Hearing (“Tr.”) at
71-72.)
At the Hearing, Mr. Graham testified that the Arizona
Republican Lawyers Association (“ARLA”) trains ARP’s
credentialed poll watchers and is responsible for the
contents of the training manual. (Tr. at 58, 64-65.) He
confirmed that ARP has received requests from
approximately 1,000 people to be poll watchers for this
election, compared to approximately 200 in past elections,
but that ARP does not have the resources to train all of
those interested before this election and those not trained
will not become credentialed poll watchers. (Tr. at 59,
69.) Mr. Graham stated that in his time with ARP, there
has never been an issue with credentialed poll watchers
acting improperly in past elections. (Tr. at 71.) He also
stated that ARP’s credentialed poll watching program is
provided for by law—the same as in past elections—and
that ARP is not coordinating with the Trump Campaign or
anyone else to organize any other poll watching activities.
(Tr. at 57, 68, 71, 76-77.) Indeed, Mr. Graham testified
that he had never heard of Stop the Steal or Mr. Stone
before this lawsuit. (Tr. at 73-74.) Mr. Graham confirmed
that his statements in the press were specifically aimed at
the new ballot harvesting law and that, if the Ninth Circuit
strikes down the ballot harvesting prohibition, ARP would
instruct credentialed poll watchers not to photograph
voters dropping off multiple ballots.7 (Tr. at 72.) The
Court heard no evidence of a broad conspiracy to
intimidate voters through poll watching, as claimed by
Plaintiff, or a plan by ARP to train or otherwise organize
poll watchers with the Trump Campaign, Stop the Steal or
Mr. Stone.
*7 Walter Opaska testified on behalf of ARLA, which has
taken on the responsibility of training credentialed poll
watchers for the Republican Party in Arizona. (Tr. at 81.)
Mr. Opaska stated that ARLA trains credentialed poll
watchers never to talk to or confront voters and not to
lodge a “challenge” as provided for by law against any
voter. (Tr. at 87-88.) Mr. Opaska stated that credentialed
poll watchers do not have the authority to enforce the now

stricken ballot harvesting law, or any other law, and if
they suspect a voter is breaking the law, they are to report
it to the elections inspector. (Tr. at 88-90.) He tells
credentialed poll watchers that they may discreetly take
photos or videos of a person suspected of breaking the
law outside the 75-foot limit but never to interact with a
voter. (Tr. at 87, 90-91.) While the training manual for
credentialed poll watchers states that a voter could be
suspected of ballot harvesting if he or she brings in three
or more ballots, Mr. Opaska stated that he instructed
credentialed poll watchers only to be suspicious of voters
who come to the polling place with “10, 20, a box load of
ballots”—an instruction that is no longer meaningful in
the absence of a ballot harvesting prohibition. (Tr. at 86,
90.) He stated that, in the years he has been involved in
the program, there has never been a report that a
credentialed poll watcher for the Arizona GOP challenged
a voter. (Tr. at 94.) The Court heard no evidence that ARP
is affiliated with training poll watchers to engage in any
activities that would on their face constitute intimidation,
threat, coercion or force against any voter for voting or
attempting to vote.
In its brief filed after the Hearing, Plaintiff provides a
screen-shot of a page from ARP’s website that states, “If
you observe anything improper or illegal at the polls on
Election Day please use this form to report it to the
Arizona Republican Party. Submit any photos, videos, or
other materials as evidence. Thank you for your service to
ensure the integrity of elections in Arizona!” (Reply to
STS at 3; Ex. 3.) Plaintiff argues that this statement
contemplates activity beyond that which ARP claims it
proscribes, both by encouraging members of the public to
be uncredentialed observers at polling places by taking
photos or videos of perceived illegal activity and by
failing to advise uncredentialed observers that no photos
or videos can be taken within the 75-foot limit. (Reply to
STS at 3.) On its face, there is nothing untoward about
telling members of the public to say something if they
witness the law being broken, and ARP’s website does
not exhort action for any specific perceived crime or
against any specific type of person or group. The Court
thus sees no obvious tie between the statement on the
website and intimidation, threat, coercion or force against
any voter for voting or attempting to vote. Moreover,
Arizona law already provides that no photographs or
videos can be taken within the 75-foot limit—a rule that
everyone is obligated to follow—and ARP’s website is
not telling uncredentialed observers to break the law.8
Plaintiff likens ARP’s statements regarding following and
photographing a narrow group of voters suspected of
ballot harvesting or breaking the law to actions that the
District of South Dakota enjoined in the context of a prior

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

5

Case 1:17-cv-01370-ESH Document 57-1 Filed 05/18/18 Page 6 of 11
Arizona Democratic Party v. Arizona Republican Party, Not Reported in Fed. Supp. (2016)
2016 WL 8669978

election in Daschle v. Thune, No. 04-CV-4177 (D.S.D.
Nov. 2, 2004). There, the court received evidence that
individuals acting on behalf of the defendants in that case
followed Native American voters from the polling places
and copied or otherwise recorded their license plate
numbers, and that the conduct resulted in intimidation of
Native American voters, particularly through the resulting
word of mouth among the Native American population.
Id. The two cases are not similar, however. There, the
defendants had already taken actions against a group of
voters that the group already perceived as intimidation,
and the court had evidence that defendants’ actions were
likely to suppress the vote. Here, Plaintiff produced no
evidence that ARP’s actions will result in voter
intimidation. Indeed, although ARP publicly condoned
the idea that its credentialed poll watchers could follow
and photograph a voter outside the 75-foot limit in the
narrow instance in which the voter was suspected of
violating Arizona’s new ballot harvesting law, that law is
no longer valid. Credentialed poll watchers are trained not
to talk to, confront, or interact in any way with the voter.
ARP’s public statements with regard to following and
photographing voters outside the 75-foot limit were made
only in the context of helping law enforcement enforce
the now-invalid ballot harvesting law and could not
reasonably have been read to address voters generally,
much less intimidate them. Moreover, credentialed poll
watchers for both political parties are established and
regulated by Arizona law, and there is no evidence of
even a single incident between a credentialed poll watcher
and voter since at least 2006—the period of time Mr.
Opaska has been involved with the ARLA credentialed
poll watcher training.
*8 With regard to the statement on ARP’s website, it is
tailored to recording somebody suspected of breaking the
law and it is not on its face tied to voter intimidation. The
Court also heard no evidence of coordination between
ARP and the other Defendants such that statements of the
other Defendants could be tied to ARP. As a result, the
Court cannot find that Plaintiff is likely to succeed in
showing ARP’s statements constitute intimidation, threat,
coercion or force against voters for voting or attempting
to vote in violation of the Voting Rights Act and/or the
Ku Klux Klan Act.

b. Statements of the Trump Campaign
In its pleadings, moving papers and presentation to the
Court, Plaintiff identified various statements made by the
candidate, his surrogates and campaign officials that, it
argues, show both an intent on the part of the Trump

Campaign to intimidate voters and intimidation in fact.
Plaintiff pointed to an unnamed Trump Campaign official
recently telling reporters that “[w]e have three major voter
suppression operations under way,” which Plaintiff
summarized as targeting “Latinos, African Americans,
and other groups of voters.” (Compl. at 1.) It introduced
news articles relating Mr. Trump’s own statements at
campaign rallies and before the media that the election is
“rigged” and that widespread voter fraud will favor his
opponent. Plaintiff relates additional statements by Mr.
Trump to his supporters that, “[a]s opposed to somebody
coming up and voting 15 times for Hillary[,] I will not tell
you to vote 15 times. I will not tell you to do that. You
won’t vote 15 times, but people will. They’ll vote many
times, and how that could have happened is
unbelievable.” (Gonski Decl. Ex. 18.)
During a speech given in Pennsylvania, Mr. Trump told
attendees, “I hope you people can sort of not just vote on
the eighth [but] go around and look and watch other
polling places and make sure that it’s 100 percent fine....
Go down to certain areas and watch and study, make sure
other people don’t come in and vote five times.” (Gonski
Decl. Ex. 11.) The following week, while exhorting
followers to “go out and watch” for voter fraud, Mr.
Trump told attendees, “[a]nd when I say ‘watch,’ you
know what I’m talking about, right?” (Gonski Decl. Ex.
19.) In Michigan, the candidate told those present to “[g]o
to your place and vote, then go pick some other place, and
go sit there with friends and make sure it’s on the up and
up.” (Gonski Decl. Ex. 20.)
Plaintiff introduced as evidence additional media reports
that campaign spokespersons were to emphasize talking
points stating, among other things, “We have [ ]seen very
significant recent voting irregularities across the country
from Pennsylvania to Colorado and an increase in
unlawful voting by illegal immigrants”; “Non-citizen
votes may have been responsible for Barack Obama’s
narrow margin of victory in North Carolina in 2008”; and,
“More than 14 percent of non-citizens surveyed in 2008
and 2010 [ ] said they were registered to vote.” (Gonski
Decl. Ex. 10.)
Finally, Plaintiff provided pages from the Trump
Campaign website where those interested could
“Volunteer to be a Trump Election Observer” to “Help
[Trump] Stop Crooked Hillary From Rigging This
Election,” which had fillable fields asking for an entrant’s
name, contact information and date of birth. (Gonski
Decl. Ex. 3.) From the above statements, talking points
and webpage, Plaintiff urges the conclusion that the
Trump Campaign has intimidated, threatened or coerced
persons for voting, or attempts to so intimidate, threaten

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

6

Case 1:17-cv-01370-ESH Document 57-1 Filed 05/18/18 Page 7 of 11
Arizona Democratic Party v. Arizona Republican Party, Not Reported in Fed. Supp. (2016)
2016 WL 8669978

or coerce such persons in violation of the Voting Rights
Act. Plaintiff also urges the conclusion that the Trump
Campaign and its co-Defendants have conspired to
prevent voters from voting by intimidation or threat, or to
injure them for voting, in violation of the Ku Klux Klan
Act.
*9 Plaintiff’s evidence regarding the Trump Campaign is
insufficient to demonstrate a likelihood of success on the
merits of either its Voting Rights Act claim or its Ku Klux
Klan Act claim. First, at least some of the Trump
Campaign’s statements on which Plaintiff relies are taken
out of context because they were abbreviated, and when
considered in full, do not persuade at all that they evince
an intent to intimidate voters, or to coordinate or conspire
with others to deny the vote to anyone; nor when read in
full would the statements have the effect of intimidating a
voter. The quote that the campaign had “three major voter
suppression operations underway,” which Plaintiff
summarizes as against Latinos, African Americans, and
others, without more, leads a reader to conclude that the
“suppression” referred to is to be achieved by denying the
vote to certain groups, and that the only groups being
“suppressed” are minority voters. A reading of the full
text of the article provides a different meaning:
“We have three major voter suppression operations
under way,” says a senior official. They’re aimed at
three groups Clinton needs to win overwhelmingly:
idealistic white liberals, young women, and African
Americans. Trump’s invocation at the debate of
Clinton’s WikiLeaks e-mails and support for the
Trans-Pacific Partnership was designed to turn off
Sanders supporters. The parade of women who say they
were sexually assaulted by Bill Clinton and harassed or
threatened by Hillary is meant to undermine her appeal
to young women. And her 1996 suggestion that some
African American males are “super predators” is the
basis of a below-the-radar effort to discourage
infrequent black voters from showing up at the
polls—particularly in Florida.
Inside the Trump Bunker, With Days to Go, Joshua Green
and Sasha Issenberg, Bloomberg Business, October 27,
2016. The full text makes clear the speaker uses the word
“suppression” to describe efforts to persuade voters not to
vote for Hillary Clinton by pointing out issues on which
the Trump Campaign believes her positions do not appeal
to those voter demographic groups—not any effort to
deny the vote by intimidation or otherwise. The quote also
makes clear that the Trump Campaign is targeting its
arguments against voting for Ms. Clinton to groups
beyond minorities. The quotation from the unnamed
campaign official is not persuasive of any element of
proof required here.

Second, whether true or false, and whether appealing or
repugnant to the listener, Mr. Trump’s and his agents’
statements that the election is rigged, that voter fraud is
being perpetrated en masse by “illegal aliens,” and that
his supporters should go to polls and watch to ensure a
fair election, without more, simply do not prove actual or
likely intimidation. One can seriously question the
wisdom of stirring up supporters about a controversial
issue, encouraging them to go to a precinct that is not
their own, and telling them to look for “voter fraud”
without defining what it is, leaving individuals to their
own devices to figure out how to go about that task.9 If the
objective of observing is to detect persons voting more
than once, the fact that the observer is in a precinct not
their own, whether in the next town or the next state, only
adds to the difficulty of recognizing a voter coming
through the line more than once. And if the objective of
observing, as strongly suggested by the candidate’s
statements, is to detect persons attempting to vote who are
ineligible because they are not citizens, it is beyond
question that no one can tell a person’s citizenship based
on what that person looks like or sounds like. But
whatever the shortcomings of the Trump Campaign’s
statements on this issue might be, simply arguing there is
voter fraud and urging people to watch out for it is not,
without more, sufficient to justify the extraordinary relief
that an injunction constitutes.
*10 Plaintiff bears the burden of providing the evidence
to take its claims from a nebulous concern over
Defendants’ statements, to a likelihood that the named
Defendants and those acting in concert with them will
intimidate, threaten, coerce, or attempt to intimidate,
threaten or coerce, voters. Plaintiff has produced no
evidence that anyone who signed up on the Trump
Campaign website was ever contacted to follow up or
connect them with a polling place. It produced no
evidence that the Trump Campaign organized, trained or
otherwise facilitated any volunteer’s actual attendance at
a polling place as an observer, in Arizona or elsewhere. It
produced no evidence of any specific actions that
observers would take, things they would say, or other
facts that would allow the Court to evaluate whether such
actions or statements could or would constitute
intimidation, instead inviting the Court to conclude that
the Trump Campaign’s general exhortations to watch
polling places is enough, and largely to speculate about
what will come of them.
Plaintiff produced no evidence that the Trump Campaign
had engaged in voter intimidation in Arizona in the past.
And despite that early in-person voting has been ongoing
in Arizona for over three weeks, it produced no evidence

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

7

Case 1:17-cv-01370-ESH Document 57-1 Filed 05/18/18 Page 8 of 11
Arizona Democratic Party v. Arizona Republican Party, Not Reported in Fed. Supp. (2016)
2016 WL 8669978

of any attempts at voter intimidation, or any voter
reporting they felt intimidated, during this cycle. This
places the instant case in vastly different territory than
Daschle v. Thune, where, as discussed above, the court
had before it concrete examples of voter intimidation by
the defendants’ supporters that had actually occurred
during early voting, thus removing any air of speculation
about likelihood of harm to voters or the plaintiff.10
Without any of these several types of evidence, the Court
is unable to evaluate in any meaningful way the
likelihood of the harm Plaintiff urges will occur in terms
of actual or attempted voter intimidation as a result of the
Trump Campaign’s statements. For that reason, Plaintiff
is unlikely to succeed on the merits of its Voting Rights
Act claim. Nor is Plaintiff likely to succeed on the merits
of its claim under the Ku Klux Klan Act, as it has not
presented sufficient evidence of a conspiracy between the
Trump Campaign and any co-Defendant to suppress votes
in Arizona. As discussed above, the uncontroverted
evidence at the hearing was that ARP did not
communicate with the Trump Campaign on this topic and
that the poll watching manual made available to all
credentialed Republican poll watchers advises them not to
contact voters directly and states that as a general matter,
credentialed poll watchers do not challenge voters.
As for Defendants Stop the Steal and Mr. Stone, whatever
communications may occur between them and the Trump
Campaign, Plaintiff has not produced evidence sufficient
to persuade the Court that they have conspired to
intimidate voters, based on the same analysis as above.
The Court agrees with Plaintiff’s counsel that it may
make inferences from what evidence exists. But at some
point the inferences become so attenuated as to be
speculative. In the Court’s judgment, based on the
evidence before it, the inferences necessary to reach a
conclusion that there is a conspiracy to intimidate voters
have reached the point of speculation.

c. Statements of Stop the Steal and Mr. Stone
Plaintiff has proffered evidence that Stop the Steal’s
planned exit polling is illegitimately designed to target
Democratic-leaning and majority-minority districts, rather
than legitimate exit polling, which requires broad
geographical distribution to produce unbiased, reliable
results. (Doc. 12, Mellman Report and Decl. at 1.) This
may be true. However, as Stop the Steal’s counsel
iterated, there is no requirement that exit polls be
scientific. (Tr. at 158-59 (“Stop the Steal isn’t required to
be scientific. It’s not even required to succeed. It may

fail.”).) Nor is Stop the Steal or Mr. Stone required to
operate a polling firm in order to conduct exit polling.
There is no law or regulation requiring any exit polling to
be standardized, reliable, or to serve any purpose, much
less a legitimate one—only that it not serve an expressly
illegitimate one. Therefore, it is not for the Court to
decide whether or not resultant information may be of
use. Instead, the Court must determine whether or not
such activity, be it called “exit polling” or anything else,
violates voters’ rights.
*11 At base, Stop the Steal is not prohibited from
conducting exit polling, so long as it does so in
accordance with all applicable laws and regulations. See
Daily Herald Co. v. Munro, 838 F.2d 380, 390 n.8 (9th
Cir. 1988) (upholding District Court’s finding that exit
polling did not interfere with citizens’ right to vote
without showing that polling was disruptive, intended to
interfere with any voter’s rights, or that someone did not
vote or voted differently due to polling). Unscientific,
targeted, unreliable, and even useless exit polling, by
itself, does not violate any voters’ rights. Without a
demonstration that Stop the Steal’s planned exit polling is
likely to intimidate, the Court may not enjoin it from
conducting its polling. Plaintiff has failed to proffer any
evidence that any voter is likely to be intimidated,
threatened, or coerced due to the polling. Instead, Plaintiff
offers conclusory statements based only on the purported
motivation of Stop the Steal and its members. If Stop the
Steal does intend to conduct its polling only at
Democratic-leaning or majority-minority districts, its
actions are facially suspicious. And neither Stop the Steal
nor Mr. Stone have offered legitimate reasons for
conducting polling in those targeted locations. But
Plaintiff does not offer the vital evidentiary components
that would allow the Court to infer likely or intended
intimidation: precisely what Stop the Steal plans to do,
where it plans to do it, how such conduct will intimidate
voters, or even if the exit polling will ultimately occur.
(Mellman Report and Decl. at 1.) The factually
unsubstantiated, though informed, opinion of Plaintiff’s
expert does not obviate the need for further evidence of
either Stop the Steal’s alleged stratagem to intimidate
non-white voters, or indeed any evidence of what Stop the
Steal will do at the polls. Without such evidence, the
Court cannot evaluate whether Stop the Steal’s activities
might constitute intimidation or not.
Plaintiff has also produced evidence that Stop the Steal
and Mr. Stone recruited and mobilized groups of
volunteers known as “vote protectors,” who are
encouraged to identify themselves as reporting for vote
protectors, approach voters at the polls, and inquire about
election
fraud.
(Gonski
Decl.
at
Ex.
23;

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

8

Case 1:17-cv-01370-ESH Document 57-1 Filed 05/18/18 Page 9 of 11
Arizona Democratic Party v. Arizona Republican Party, Not Reported in Fed. Supp. (2016)
2016 WL 8669978

http://stopthesteal.org.) Plaintiff also alleges that Mr.
Stone is using social media to urge potential
uncredentialed observers to wear red shirts on Election
Day. (Compl. ¶ 35.) However, there is no prohibition
regarding the clothing of uncredentialed observers at
polling locations, nor has Plaintiff provided any legal
precedent holding that such activity is unconstitutional,
likely to intimidate voters, or will otherwise hinder voter
participation. Neither the encouragement of the activities
alleged, nor the activities themselves are per se
prohibited. It is Plaintiff’s burden to illustrate that these
activities are likely to intimidate, threaten, or coerce
voters. The evidence educed has failed to do so.

2. Likelihood of Irreparable Harm
While a large portion of ARP and the Trump Campaign’s
brief focuses on what is purportedly the second part of the
four-factor test (GOP Resp. at 4-7), they instead articulate
that there is no evidence that the alleged harms have
occurred or are likely to occur. This argument is properly
placed in the first part of the four-factor test—likelihood
of success on the merits. In analyzing the irreparable harm
factor, the Court does not assess the likelihood that such
harm will occur, but, if such harm does occur, whether it
will be irreparable.
In doing so, it is clear that abridgement of the right to vote
constitutes irreparable injury. Reynolds v. Sims, 377 U.S.
533, 562 (the right to vote is “a fundamental political
right, because [it] is preservative of all rights”);
Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)
(“It is well established that the deprivation of
constitutional
rights
‘unquestionably
constitutes
irreparable injury.’ ”) (quoting Elrod v. Burns, 427 U.S.
347, 373 (1976)); Cardona v. Oakland Unified Sch. Dist.,
California, 785 F. Supp. 837, 840 (N.D. Cal. 1992)
(“Abridgement or dilution of a right so fundamental as the
right to vote constitutes irreparable injury.”); see also
Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir.
2012) (“A restriction on the fundamental right to vote ...
constitutes irreparable injury.”) (internal citation omitted).
Consequently, if potential members of the electorate
suffer intimidation, threatening conduct, or coercion such
that their right to vote freely is abridged, or altogether
extinguished, Plaintiff would be irreparably harmed.
Further, if some potential voters are improperly dissuaded
from exercising their franchise, it is unlikely those voters
can be identified, their votes cannot be recast, and no
amount of traditional remedies such as money damages
would suffice after the fact. This factor weighs in favor of
a preliminary injunction.

3. Balance of Equities and the Public Interest
*12 Because Plaintiff brings this action not only on behalf
of the Arizona Democratic Party, but also unidentified
potential voters (see, e.g., Mot. at 15-16), and ARP and
the Trump Campaign purport to oppose the injunction due
to its effect on unknown third-parties (GOP Resp. at
7-10), the Court will collapse the final two factors into a
single category. See Arizona Dream Act Coal. v. Brewer,
818 F.3d 901, 920 (9th Cir. 2016) (analyzing both public
interest and equities factors simultaneously); Minard Run
Oil Co. v. U.S. Forest Serv., 670 F.3d 236, 256 (3d Cir.
2011) (“we consider together the final two elements of the
preliminary injunction framework—the public interest
and the balance of the equities”); Merced v. Spano, No.
16CV3054 (SJ) (SMG), 2016 WL 3906646, at *2
(E.D.N.Y. July 14, 2016) (“The remaining elements
(irreparable harm, balance of the equities and public
interest) will be discussed together because in this
instance, they are intertwined.”). Analyzing factors three
and four in unison, the Court must balance both Plaintiff’s
and the public’s interest in protecting voters from undue
influence, intimidation, or coercion, against Defendants’
poll observing rights and right to free speech under the
First Amendment.
As stated, the right to vote is a fundamental one,
Reynolds, 377 at 562, the preservation of which is
compelling. See, e.g., Burson v. Freeman, 504 U.S. 191
(1992). Indeed, “[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.” Wesberry v. Sanders¸ 376 U.S. 1, 17 (1964);
see also Sw. Voter Registration Educ. Project v. Shelley,
344 F.3d 914, 918 (9th Cir. 2003) (“There is no doubt that
the right to vote is fundamental ...”). The Supreme Court
has consistently held that the states, too, have a
compelling interest in maintaining the integrity of the
voting place and preventing voter intimidation and
confusion. Burson v. Freeman, 504 U.S. 191, 198 (1992);
Eu v. San Francisco Cnty. Democratic Cent. Comm., 489
U.S. 214, 229 (1989); Anderson v. Celebrezze, 460 U.S.
780 (1983). Accordingly, both Plaintiff and the public
have a strong interest in allowing every registered voter to
do so freely.
On the other hand, the Court acknowledges that Plaintiff’s
injunction, as requested, raises First Amendment
concerns. Just as the right to vote is a fundamental one, so
too is the right to political speech and the right to
associate. See, e.g., Mills v. Alabama, 384 U.S. 214,

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

9

Case 1:17-cv-01370-ESH Document 57-1 Filed 05/18/18 Page 10 of 11
Arizona Democratic Party v. Arizona Republican Party, Not Reported in Fed. Supp. (2016)
2016 WL 8669978

218-19 (1966) (“there is practically universal agreement
that a major purpose of [the First] Amendment was to
protect the free discussion of governmental affairs ...
[including] discussions of candidates, structures and
forms of government, the manner in which government is
operated or should be operated, and all such matters
relating to political processes”); Lerman v. Bd. of
Elections in City of New York, 232 F.3d 135, 146 (2d Cir.
2000) (“The right to political association also is at the
core of the First Amendment, and even practices that only
potentially threaten political association are highly
suspect.”) (internal quotation and citation omitted). While
the Court may only enjoin Defendants and their
co-conspirators, if any, the injunction may nonetheless
have a chilling effect on protected First Amendment
speech by others. Indeed, Plaintiff has not provided the
Court with a narrowly tailored injunction that would not
unintentionally sweep within its ambit other activities that
constitute exercise of freedom of speech. See, e.g.¸
Rodriguez v. Robbins, 715 F.3d 1127, 1133 (9th Cir.
2013) (“An overbroad injunction is an abuse of
discretion.”); Union Pac. R. Co. v. Mower, 219 F.3d
1069, 1077 (9th Cir. 2000) (“one basic principle built into
Rule 65 is that those against whom an injunction is issued
should receive fair and precisely drawn notice of what the
injunction actually prohibits”) (quoting Granny Goose
Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423,
444 (1974)); Waldman Pub. Corp. v. Landoll, Inc., 43
F.3d 775, 785 (2d Cir. 1994) (“an injunction should not
impose unnecessary burdens on lawful activity”).
*13 The Court also acknowledges that Plaintiff’s
requested injunction may further impinge on state-created
rights or freedoms regarding poll observation. However,
the injunction issued, if any, would only instruct both
credentialed poll watchers and uncredentialed observers
alike to follow the law as prescribed, and for any training
given to credentialed poll watchers to similarly guide its
trainees. Further, poll watching is not a fundamental right
that enjoys distinct First Amendment protection and it
does not carry the same implications as the preceding
rights. See, e.g., Cotz v. Mastroeni, 476 F. Supp. 2d 332,
364 (S.D.N.Y. 2007) (“poll watching is not incidental to
this right and has no distinct First Amendment
protection”); Turner v. Cooper, 583 F. Supp. 1160,
1161–62 (N.D. Ill. 1983) (holding that the act of poll
watching is not protected by the First Amendment).
Ultimately, each side implicates vital rights central to our

system of government. Because the right to vote is
sacrosanct and preservative of all other rights, the
hardship balance and public interest factors weigh slightly
in favor of granting Plaintiff’s Motion.

II. CONCLUSION
The Court finds that Defendant Mr. Stone has sufficient
contacts with Arizona and that Plaintiff’s claims arise
from those contacts, such that the Court has jurisdiction
over Mr. Stone in this matter. The Court also finds that
Plaintiff has not demonstrated it is likely to succeed in
showing the statements and actions of Defendants to-date
constitute intimidation, threat, coercion or force against
voters for voting or attempting to vote in violation of the
Voting Rights Act and/or the Ku Klux Klan Act.
Moreover, Plaintiff has not shown the likelihood of a
conspiracy as required for its Ku Klux Klan Act claim.
Plaintiff is thus not likely to succeed on the merits for
either of its claims against Defendants. Although Plaintiff
has demonstrated (1) a likelihood of irreparable injury if
Defendants violate the Voting Rights Act and/or the Ku
Klux Klan Act prior to or on Election Day; (2) that the
balance of equities tips slightly in its favor; and (3) that,
in such an instance, an injunction would be in the public
interest, the Court must deny Plaintiff’s request for
injunctive relief before Election Day based on the record
before the Court. The parties may continue to raise issues
to this Court through Election Day if they receive
additional, material evidence.
IT IS THEREFORE ORDERED denying Plaintiff’s
Motion for Temporary Restraining Order and/or
Preliminary Injunction (Doc. 10).
IT IS FURTHER ORDERED denying as moot
Defendant Roger J. Stone, Jr.’s oral motion to dismiss for
lack of service and denying his oral motion to dismiss for
lack of jurisdiction (see Doc. 24; Doc. 25, Tr. at 43).

All Citations
Not Reported in Fed. Supp., 2016 WL 8669978

Footnotes
1

The Court denied a similar motion brought by Defendant Stop the Steal at the Hearing. (Tr. at 52.)

2

Plaintiff does not attempt to provide facts to support a finding of general jurisdiction over Mr. Stone.

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

10

Case 1:17-cv-01370-ESH Document 57-1 Filed 05/18/18 Page 11 of 11
Arizona Democratic Party v. Arizona Republican Party, Not Reported in Fed. Supp. (2016)
2016 WL 8669978

3

ARP and the Trump Campaign argue that an action under Section 11(b) of the Voting Rights Act requires a showing that a
defendant intended to intimidate, threaten or coerce or attempt to intimidate, threaten or coerce a person for voting or
attempting to vote. (GOP Resp. at 22 (citing Olagues v. Russoniello, 770 F.2d 791, 804 (9th Cir. 1985)).) Plaintiff argues that an
action under Section 11(b) only requires that a defendant intended to act, with the result that the actions intimidate, threaten or
coerce or attempt to intimidate, threaten or coerce a person for voting or attempting to vote. (Reply to GOP at 4 (citing Section
11(b) of the Voting Rights Act); Reply to STS at 7-9.) While the Court agrees with Plaintiff that the plain language of the statute
does not require a particular mens rea, the Court need not decide this question to resolve Plaintiff’s Motion.

4

ARP and the Trump Campaign argue that an action under 42 U.S.C. § 1985(3) requires a showing of racial animus and that the
specific provision invoked by Plaintiff—the “support and advocacy clause”—cannot be applied against a non-state actor. (GOP
Resp. at 17-19.) Plaintiff disagrees on both counts. (Reply to GOP at 4-8.) Again, the plain language of the statute does not
require either of the elements proposed by ARP and the Trump Campaign. For the purpose of resolving Plaintiff’s Motion, the
Court presumes application of the “support and advocacy clause,” like the other clauses in 42 U.S.C. § 1985(3), to ARP and the
Trump Campaign as non-state actors. The Court need not read into the statute a racial animus requirement to resolve Plaintiff’s
Motion.

5

For the purposes of this Order, the Court refers to these representatives provided for by statute and duly appointed as
“credentialed poll watchers.” The Court refers to those persons present to observe activities at a polling place who are not
appointed under the statute as “uncredentialed observers.”

6

The day after the Hearing, an en banc panel of the Ninth Circuit Court of Appeals ruled that the statute is constitutionally infirm
and struck it down in Ninth Circuit Case No. 16-16698, Order dated Nov. 4, 2016. (See Reply to STS at 2.)

7

After the Ninth Circuit did strike the ballot harvesting law, ARP filed a Notice (Doc. 30-2) that it was informing its credentialed poll
watchers via its website not to follow or photograph voters suspected of ballot harvesting or, indeed, any voter.

8

After the Ninth Circuit struck the ballot harvesting law, ARP filed a Notice declaring that it removed the subject page from its
website. (Doc. 30-2.)

9

Indeed, among other evidence, Plaintiff produces a Tweet from a Trump supporter in Florida stating he planned to be “wear’n
red at polls,” “watch’n fer shenanigans,” and “haul ya away,” accompanied by a photo of a pickup truck and a person-sized cage
built in the bed, surrounded by American flags. (Gonski Decl. Ex. 7.) An Ohio supporter stated, “it’s called racial profiling.
Mexicans. Syrians. People who can’t speak American. I’m going to go right up behind them. I’ll do everything legally. I want to see
if they are accountable. I’m not going to do anything illegal. I’m going to make them a little bit nervous.” (Gonski Decl. Ex. 6.)
While these statements are deeply troubling, they do not illustrate an organized effort to intimidate voters in this jurisdiction,
but rather appear to be outlier statements from other jurisdictions. Enjoining Defendants in this action is not likely to address
those statements.

10

The Court notes, as have other district courts considering similar matters, that should evidence arise on or before November 8,
2016, demonstrating harm or likelihood of harm as a result of Defendants’ actions, it would entertain renewal of Plaintiff’s
Motion.

End of Document

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

11

Case 1:17-cv-01370-ESH Document 57-2 Filed 05/18/18 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
NORTH CAROLINA DEMOCRATIC
PARTY,
Plaintiff,
v.
NORTH CAROLINA REPUBLICAN
PARTY, DONALD J. TRUMP FOR
PRESIDENT, INC., ROGER J.
STONE, JR., and STOP THE STEAL
INC.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

1:16-CV-1288

ORDER
This matter is before the Court on a motion for temporary restraining order and/or
preliminary injunction filed by the plaintiff North Carolina Democratic Party. (Doc. 4).
The plaintiff contends that the defendants are acting in concert to disrupt the upcoming
election by intimidating voters in violation of the Voting Rights Act and the Ku Klux
Klan Act of 1871. The plaintiff seeks injunctive relief prohibiting the defendants from
encouraging individuals to serve as unofficial poll watchers, from monitoring polling
places, from gathering or loitering within 50 feet of a polling place, and from
photographing or otherwise intimidating voters.
A preliminary injunction is “an extraordinary remedy that may only be awarded
upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 22 (2008). To prevail in the preliminary injunction motion, the
plaintiff must demonstrate that (1) it is likely to succeed on the merits; (2) it will likely

Case 1:16-cv-01288-CCE-JEP Document 30 Filed 11/07/16 Page 1 of 4

Case 1:17-cv-01370-ESH Document 57-2 Filed 05/18/18 Page 2 of 4

suffer irreparable harm absent an injunction; (3) the balance of equities weighs in its
favor; and (4) the injunction is in the public interest. Id. at 20.
Tomorrow, November 8, 2016, is Election Day, when voting will take place in
North Carolina for the president, a United States senator, the governor, and numerous
other public officials. The plaintiff has presented evidence that the defendants are each
organizing or encouraging volunteers to go to polling locations in North Carolina for the
ostensible purposes of identifying and stopping voting fraud and conducting exit polling.
The plaintiff has presented evidence from which it asks the Court to infer that the real
purpose and effect of these volunteer activities will be to intimidate minority voters.
While the statements of the defendant Roger Stone, the defendants’ presidential
nominee, and the nominee’s surrogates, taken in context, may be susceptible to the
interpretation that Mr. Stone and the Trump campaign are encouraging their supporters to
intimidate voters, there is little evidence that supporters are acting on these indirect
suggestions. There have been only a handful of hearsay reports that purported supporters
of the defendants’ presidential nominee may have threatened or intimidated voters in
North Carolina during several weeks of early voting. The only evidence that the plaintiff
has presented as to North Carolina are statements to news media by Mr. Stone that
volunteers will conduct exit polling in Charlotte and Fayetteville, (Doc. 6-5 at 1); a report
on a social media website that two supporters of the defendants’ presidential nominee
were seen near the Board of Elections office in Lee County with a baseball bat
emblazoned with the nominee’s name, (Doc. 6-30); and a handful of hearsay reports from
a few counties that individuals purporting to be supporters of the defendants’ presidential
2

Case 1:16-cv-01288-CCE-JEP Document 30 Filed 11/07/16 Page 2 of 4

Case 1:17-cv-01370-ESH Document 57-2 Filed 05/18/18 Page 3 of 4

nominee have harassed voters at early voting polling places. (Doc. 8 at ¶¶ 3-9). The Lee
County incident has been explained under oath and does not appear to have been
intimidating conduct. (Doc. 11-1). The only evidence that any of this conduct has
intimidated a voter or suppressed the vote is a hearsay report that one voter in Wake
County left a polling place without voting in order to avoid persons telling voters waiting
in line to vote for the defendants’ nominee “or else.” (Doc. 8 at ¶ 4). While there are
additional reports nationwide, the evidence of such troubling “outlier statements” in other
states is not particularly indicative that intimidation will occur in North Carolina. See
Ariz. Democratic Party v. Ariz. Republican Party, No. 2:16-CV-3752, slip op. at 17 n.9
(D. Ariz. Nov. 4, 2016) (order denying preliminary injunction).
Even if all this evidence is credited, it is insufficient to establish a likelihood of
success on the merits of the plaintiff’s claims of a conspiracy by the defendants to train
and encourage volunteers to intimidate voters in North Carolina. Nor is it sufficient to
establish the degree of irreparable harm required to obtain the broad injunctive relief the
plaintiff seeks.
Moreover, these statements by the nominee and others are also susceptible to the
interpretation that these defendants are encouraging their supporters to report potential
voter fraud. There is nothing inherently intimidating about persons observing spaces
outside polling places and reporting possible fraud to appropriate officials or to a hotline
in a peaceful, non-threatening, and non-disruptive manner. Supporters of particular
candidates have long been allowed to encourage persons coming to the polls to vote a
particular way, subject to reasonable space restrictions applicable to all. Trust and
3

Case 1:16-cv-01288-CCE-JEP Document 30 Filed 11/07/16 Page 3 of 4

Case 1:17-cv-01370-ESH Document 57-2 Filed 05/18/18 Page 4 of 4

confidence in election results is important, and restricting persons supporting one
candidate or party from access to spaces near polling sites when there is not substantial
evidence that the persons will act to or have been trained or encouraged to intimidate
voters is not conducive to such trust and confidence and raises significant First
Amendment concerns. Intimidation of voters, intentional or otherwise, is already against
the law, and persons violating those laws are already subject to criminal prosecution and
civil damages.
That said, voters are entitled to cast their ballots without fear of reprisal or threat
of physical harm. See 52 U.S.C. § 10307(b) (making it illegal for any person, “whether
acting under color of law or otherwise,” to “intimidate, threaten, or coerce . . . any person
for voting”); 42 U.S.C. § 1985(3). On Election Day, if it becomes apparent that agents of
any defendant or supporters encouraged by any defendant are making an effort to
intimidate minority voters or to further incite intimidation of voters, the plaintiff may
renew the motion.
It is ORDERED that the plaintiff’s motion for a temporary restraining order
and/or preliminary injunction, (Doc. 4), is DENIED, without prejudice should
circumstances change.
This the 7th day of November, 2016.

__________________________________
UNITED STATES DISTRICT JUDGE

4

Case 1:16-cv-01288-CCE-JEP Document 30 Filed 11/07/16 Page 4 of 4

CaseCase 1:17-cv-01370-ESH Document 57-3 Filed 05/18/18 of 2 PageID #: 35
4:04-cv-04177-LLP Document 6 Filed 11/02/04 Page 1 Page 1 of 2

CaseCase 1:17-cv-01370-ESH Document 57-3 Filed 05/18/18 of 2 PageID #: 36
4:04-cv-04177-LLP Document 6 Filed 11/02/04 Page 2 Page 2 of 2