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

Filing 61

Unopposed MOTION for Leave to File Supplemental Memorandum by DONALD J. TRUMP FOR PRESIDENT, INC. (Attachments: # 1 Exhibit Proposed Supplemental Memorandum, # 2 Text of Proposed Order)(Carvin, Michael)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ROY COCKRUM,

ET AL .,

Plaintiffs,
v.

Case No. 1:17-cv-1370-ESH

DONALD J. TRUMP FOR PRESIDENT,
INC., ET AL .,
Defendants.

SUPPLEMENTAL MEMORANDUM IN SUPPORT OF DEFENDANT
DONALD J. TRUMP FOR PRESIDENT, INC.’S
MOTION TO DISMISS THE FIRST AMENDED COMPLAINT

Jeffrey Baltruzak
JONES DAY
500 Grant Street, Suite 4500
Pittsburgh, PA 15219
[phone]
[e-mail]

Michael A. Carvin
Counsel of Record
Vivek Suri
JONES DAY
51 Louisiana Avenue, NW
Washington, DC 20001
[phone]
[e-mail]
[e-mail]

Counsel for Donald J. Trump for President, Inc.

The Trump Campaign has explained that a claim under 42 U.S.C. § 1985(3) requires state action if the predicate constitutional guarantee also requires state action. (Mot. to Dismiss, Dkt. 20 at 42.) That means that a plaintiff alleging interference with the right to advocate must show state action, since the First Amendment
covers only state action. In contrast, a plaintiff alleging interference with the right
to vote need not show state action, since the Constitution protects voting even
against some private conduct. (Reply, Dkt. 42 at 29.) Since this case involves speaking rather than voting, Plaintiffs must show state action.
Plaintiffs claim that Ex parte Yarbrough, 110 U.S. 651 (1884), disproves this theory. That is not so, because Yarbrough involved voting, not speaking. In that case,
members of the Ku Klux Klan “beat, bruised, wounded, and otherwise maltreated”
“a citizen of African descent” in order to deter him from “the exercise of his right to
vote for a member of the congress.” Id. at 657. The Court upheld the application of
the statute to this private action, explaining that Congress had the “power to provide for preventing violence exercised on the voter as a means of controlling his
vote.” Id. at 658; see id. at 661 (“power … to protect the act of voting, the place
where it is done, and the man who votes from personal violence or intimidation”).
Later Supreme Court opinions confirm that Yarbrough rests on the premise that the
right to vote, unlike the right to speak, is protected even against private action. See,
e.g., United States v. Williams, 341 U.S. 70, 77 (1951) (plurality opinion) (“The right
of citizens to vote in congressional elections … may obviously be protected by Congress from individual as well as from state interference. Ex parte Yarbrough, 110

U.S. 651. On the other hand, we have consistently held that the category of rights
which Congress may constitutionally protect from interference by private persons
excludes those rights which the Constitution merely guarantees from interference
by a State”); United States v. Guest, 383 U.S. 745, 771 (1966) (Harlan, J., concurring in part) (“In Ex parte Yarbrough, … the Court held that implicit in the Constitution is the right of citizens to be free of private interference in federal elections”).
Plaintiffs cite three further cases that supposedly disprove the existence of a
state-action requirement in § 1985(3). All of these cases—decided in a preliminaryinjunction or temporary-restraining-order posture—are inapposite, because they all
involve voting rather than speaking. In Arizona Democratic Party v. Arizona Republican Party, 2016 WL 8669978, at *1 (D. Ariz. Nov. 4, 2016), the court addressed an
alleged “call for the intimidation of voters in [the] presidential election.” In North
Carolina Democratic Party v. North Carolina Republican Party (M.D.N.C. May 18,
2018) (Dkt. 57-2), the court addressed an alleged effort to “intimidat[e] voters” by
“[using] unofficial poll watchers,” “monitoring polling places,” “gathering [near] a
polling place,” and “photographing or otherwise intimidating voters.” And in Daschle
v. Thune (D.S.D. Nov. 2, 2004) (Dkt. 57-3), the court addressed alleged “intimidation
of prospective Native American voters” that supposedly threatened to deny a “minority” “an opportunity to vote.” These cases are thus consistent with the interpretation of § 1985(3) defended by the Campaign.
CONCLUSION
The Court should grant the motion to dismiss.

Dated: May 24, 2018
Jeffrey Baltruzak (PA Bar No. 318156)
JONES DAY
500 Grant Street, Suite 4500
Pittsburgh, PA 15219
[phone]
[e-mail]

Respectfully submitted,
/s/ Michael A. Carvin
Michael A. Carvin (DC Bar No. 366784)
Counsel of Record
Vivek Suri (DC Bar No. 1033613)
JONES DAY
51 Louisiana Avenue, NW
Washington, DC 20001
[phone]
[e-mail]
[e-mail]

Counsel for Donald J. Trump for President, Inc.