A. Legal Standards Section 11(b)

Section 11(b) 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 . . . .” 52 U.S.C. § 10307(b). Thus, the VRA’s prohibition extends to actual intimidation and attempted intimidation.57

At the time Congress passed Section 11(b):

To “intimidate” mean[t] to “make timid or fearful,” or to “inspire or affect with fear,” especially “to compel to action or inaction (as by threats).” To “threaten” mean[t] to “utter threats against’ or ‘promise punishment, reprisal, or other distress.” And to “coerce” mean[t] to “restrain, control, or dominate, nullifying individual will or desire (as by force, power, violence, or intimidation).”

Nat’l Coal. on Black Civic Participation v. Wohl, 498 F. Supp. 3d 457, 477 (S.D.N.Y. 2020) (internal citations omitted) (quoting Webster’s Third New International Dictionary, 1183, 2381 438 (1966)); see also United States v. Harvey, 250 F. Supp. 219, 236–37 (E.D. La. 1966) (asserting, around the time of Section 11(b)’s passage, “[t]he word ‘intimidate’ is defined by Webster as ‘to frighten; to make timid or fearful; to inspire or affect with fear; to deter, as by threats.’ The word ‘threat’ is defined as ‘the expression of an intention to inflict evil or injury on another; menace; threatening; denunciation.’ To ‘threaten’ is ‘to utter threats against; promise punishment, reprisal, or the like.’ And to ‘coerce’ is ‘to restrain by force; to repress; to curb; or to compel to any action.’”).

The Court previously noted that the “clearest articulation of a Section 11(b) test” (Doc. No. [222], 14) came from a district court opinion on a motion to dismiss out of the Southern District of New York, National Coalition on Black Civic Participation v. Wohl, 512 F. Supp. 3d 500 (S.D.N.Y. 2021). In Wohl, the district court determined “intimidation includes messages that a reasonable recipient, familiar with the context of the message, would interpret as a threat of injury—whether physical or nonviolent—intended to deter individuals from exercising their voting rights.” Id. at 509 (emphasis added). The Wohl court went on to explain that these illegal acts “may take on many forms,” and can include “actions or communications that inspire fear of economic harm, legal repercussions, privacy violations, and even surveillance can constitute unlawful threats or intimidation under the statute.” Id. (citing United States v. Beaty, 288 F.2d 653, 656 (6th Cir. 1961)).

Given the fact-specific nature of Section 11(b) cases, the Court outlined guidance for the Parties, based on the summary judgment evidence, specifying the showings Plaintiffs would need to make to succeed in their Section 11(b) claim: (1) that Defendants’ actions directly or through means of a third-party in which they directed, (2) caused, or could have caused, (3) any person to be reasonably intimidated, threatened, or coerced from voting or attempting to vote.58 Based on the facts peculiar to this case—as apparent in the summary judgment record evidence—the Court anticipated that in order for Plaintiffs to be successful on their Section 11(b) claim, they must overcome these three hurdles. The Court will address these three showings in the light of the trial evidence in its analysis below.

“[S]tanding is jurisdictional,” however. Stalley ex rel. U.S. v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008) (quoting Cone Corp. v. Fla. Dep’t of Transp., 921 F.2d 1190, 1203 n. 42 (11th Cir. 1991)). Thus, the Court first turns to the standing inquiry.