Footnotes, 58.

Unbeknownst to the Court at the time, the day before the Court issued its summary judgment order in this case, the Wohl court granted summary judgment to plaintiffs on their Section 11(b) claim. In Wohl, the defendants had made a series of Robocalls to tens of thousands of voters in numerous states, warning voters “to ‘beware of vote by mail,’” and threatening legal, economic, and physical consequences for voting-by-mail. Nat’l Coal. on Black Civic Participation v. Wohl, --- F. Supp. 3d. ---, No. 20 CIV. 8668 (VM), 2023 WL 2403012, at 20 (S.D.N.Y. Mar. 8, 2023). Wohl held that these Robocalls constituted voter intimidation because “[u]nderpinning the legal, economic, and bodily consequences that [d]efendants articulated through the Robocall was the notion that voting by mail put voters at risk of increased surveillance and scrutiny, exposing their private data to any entity seeking to utilize that information in nefarious ways.” Id. at 22.

Also following the Court’s summary judgment order in this case, one of its sister district courts determined that no private right of action exists under Section 11(b). Andrews v. D’Souza, No. 1:22-CV-04259-SDG, 2023 WL 6456517, at *11 (N.D. Ga. Sept. 30, 2023) (“The Court agrees that there is no identifiable link between the rights created under Section 11(b) of the VRA and any statutory language demonstrating congressional intent to provide a private remedy for a violation of those rights. Accordingly, the Court concludes that there exists no private right of action under Section 11(b) of the VRA.”). Other district courts, however, have held to the contrary. See, e.g., Krabach v. King Cnty., No. 2:22-CV-1252-BJR, 2023 WL 7018431, at *3 (W.D. Wash. Oct. 25, 2023). And Defendants have not raised the private right of action issue in this case.

Neither the Wohl court’s summary judgment order or the Andrews’s decision, however, causes the Court to significantly alter the standards it previously put forth in the summary judgment order.