Remedying Intimidating Voter Disinformation Through § 1985(3)’s Support Or Advocacy Clauses

Abstract

The 2020 election witnessed the continued shift of voter intimidation from the polling place to cyberspace. As social media and online tools provide bad actors with an unprecedented ability to spread disinformation aimed at intimidating voters and keeping them from the polls, there has been a renewed focus on federal voter intimidation laws as a source of redress. While two of these laws—section 131(b) of the Civil Rights Act of 1957 and section 11(b) of the Voting Rights Act—are limited to injunctive relief and attorney’s fees, Section 1985(3) of the Ku Klux Klan Act goes farther and provides for compensatory and punitive damages along with several procedural advantages for victims of conspiracies to prevent voters from giving their “Support or Advocacy” to federal candidates. This article provides the first analysis of the application of the Support or Advocacy Clauses to voter disinformation and argues that, despite certain obstacles, plaintiffs should embrace the clauses as a potentially powerful weapon against modern-day voter intimidation.

Keywords: Voting, Elections, Voting Rights, Election Law, Intimidation, 1985(3), Disinformation, Misinformation, Social Media, First Amendment, Ku Klux Klan Act, Civil Rights, Conspiracy, Civil Conspiracy, Reconstruction, Voting Rights Act