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A recent federal court opinion clarifies a portion of the Ku Klux Klan Act, providing a tool to address election-related violence.
Charlottesville Unite the Right Rally, August 12, 2017 (Photo: Rodney Dunning/Flickr, https://www.flickr.com/photos/On Oct. 30, 2020, just days before the U.S. presidential election, a Biden-Harris campaign bus was traveling along Interstate 35 between Austin and San Antonio when a group of Trump supporters in cars and trucks—a “Trump Train”—surrounded them. For more than an hour, these vehicles drove or swerved in front of the bus, nearly running it off the road. One Trump Train vehicle collided with a Biden-Harris’s staffer’s car that was following the bus. Ultimately, the Trump Train achieved its goal: After the Biden-Harris bus managed to exit the highway, it canceled its remaining campaign stops in Texas.
The harassment of the Biden-Harris campaign bus was a deliberate act of physical intimidation, organized and carried out with a political motive. If American elections are to be held peacefully and democratically, the perpetrators of such actions need to be held accountable. And indeed, several of the Biden campaign’s personnel who were present that day filed a federal lawsuit seeking damages against Trump Train drivers. (The attorneys litigating the case for the plaintiffs include lawyers for the nonprofit organization Protect Democracy, on whose board of advisors I serve.)
The lawsuit, called Davis v. Cisneros, rests in part on a Reconstruction-era statute that was designed to provide redress for politically motivated violence: the Ku Klux Klan Act of 1871. In the past several years, as the incidence of political violence has grown, plaintiffs seeking redress have brought a variety of suits under the Klan Act, including in connection with Jan. 6. But some Klan Act suits have run into trouble as courts have given that act an unduly restrictive reading providing no liability under the Klan Act unless the defendants conspired to violate rights guaranteed by other sources of law (like the First Amendment or the Voting Rights Act).
The Davis case has the potential to debunk misinterpretations of the act and reaffirm its vitality as a tool for combating political violence. In a 64-page opinion denying the Trump Train defendants’ motion for summary judgment, Judge Robert Pitman of the Western District of Texas explained that the Klan Act creates liability whenever people conspire to use intimidation or threats to prevent citizens from engaging in lawful activity supporting candidates in federal elections, whether or not the conspirators’ actions amount to violations of anyone’s actual voting rights or free speech rights. The decision in Davis—though not the only recent decision interpreting the statute correctly—is notable for the care and depth of its analysis and the clarity with which it provides guidance for future courts. As a result, it can be a model for addressing future cases under the Klan Act.
The Threat of Political Violence
That an organized group of Trump supporters would use the threat of physical harm as a political tactic should not be surprising. Since the early stages of his 2015 presidential campaign, Donald Trump has encouraged the threat and use of physical violence for political ends. The Jan. 6 riot was an especially salient episode, but it was not an anomaly. It was part of a normalization of violence in American politics, and experts now warn of the heightened threat of such violence as the 2024 campaign heats up. For democratic elections and the rule of law to prevail, addressing that threat is essential: Perpetrators of political violence must be held legally accountable. Legal accountability is a deterrent, a recognition of the harm suffered by the targets of political violence, and an important symbol of a shared norm that such conduct is unacceptable. If people can engage in political violence with impunity, the frequency and scale of that violence will grow.
Ours is not the first era in American history to confront the problem of political violence. During Reconstruction, the Ku Klux Klan operated more or less as a paramilitary wing of the Democratic Party in the South, using violence and threats of violence to deter voting and officeholding by Republicans, both black and white. Congress responded with the Civil Rights Act of 1871, colloquially called the Ku Klux Klan Act, giving federal officials and ordinary citizens a way to hold the Klan (and others) legally responsible for their political terrorism. Among other things, the Klan Act provides civil monetary redress in federal court, including potential punitive damages and attorneys’ fees, for purely private conspiracies to interfere with political campaigning.
For much of the 20th century, most of the Klan Act lay dormant. But as the problem of political violence has returned in the 21st century, the act is proving once again to be a valuable asset.
The plaintiffs in the Trump Train case pleaded claims under two clauses of the Klan Act—the “support-or-advocacy clauses”—which are now codified in 42 U.S.C. § 1985. The first support-or-advocacy clause provides a cause of action for money damages in case of conspiracies to use “force, intimidation, or threats” to prevent citizens from “giving … support or advocacy” in favor of candidates for federal office. The second support-or-advocacy clause provides a cause of action for money damages in cases of conspiracies “to injure any citizen in person or property on account of such support or advocacy[.]” The plaintiffs claim that the Trump Train drivers deliberately intimidated the Biden campaigners to deter them from further campaigning, which would create liability under the first clause, and also that some of the Biden campaigners suffered injuries, which would create liability under the second clause.
The defendants moved for summary judgment, advancing a mistaken understanding of the Klan Act endorsed by the U.S. Court of Appeals for the Eighth Circuit in Gill v. Farm Bureau Insurance. According to that interpretation, the support-or-advocacy clauses (a) do not create substantive causes of action (that is, independent grounds for suit) but merely provide a remedy for the violation of voting rights established elsewhere; (b) do not apply to private conspiracies, as opposed to conspiracies involving state action; (c) apply only to conspiracies involving racial or similar class-based animus; (d) apply only to violence of the kind the Klan committed during Reconstruction; (e) would be beyond Congress’s constitutional power to enact if not subject to the limitations described above; and (f) could not be applied against the defendants without violating the First Amendment, because the defendants’ conduct was an expression of political support for the Trump campaign.
If that interpretation were correct, the Biden-Harris bus plaintiffs would have no claim under the Klan Act. After all, the plaintiffs are not claiming that the Trump Train abridged their voting rights, the Trump Train drivers were private citizens rather than state actors, and there is no allegation that the Trump Train drivers harassed the campaign bus for reasons of racial or similar class-based animus.
But this defense is flawed: The Eighth Circuit in Gill badly misinterpreted the Klan Act. Unfortunately, the Trump Train defendants are not the only people who have followed that misinterpretation. On the contrary, some lower courts have accepted Gill’s reading, creating unwarranted obstacles to Klan Act litigation. It is perhaps unsurprising that some courts have gone down this road: The Klan Act is a complexly written statute, and, given the relative paucity of political violence during the three decades prior to 2016, most sitting judges have little experience applying it. An appellate decision like Gill, purporting to explain how the statute works, is something that judges naturally look to for guidance. The opinion in Davis can do those judges a great service by explaining Gill’s flaws and demonstrating how the Klan Act is actually supposed to work.
The Davis Opinion
First, the opinion in Davis recognizes that the support-or-advocacy clauses establish an independent, substantive right to support and advocate, rather than merely providing a remedy for violations of the right to vote. The idea that those clauses simply establish a remedy for violations of rights specified elsewhere arises from a conflation of the support-or-advocacy clauses with a different clause that, like the support-or-advocacy clauses, is now codified at 42 U.S.C. § 1985(3). That other clause provides a cause of action in cases of conspiracies to “depriv[e] … persons of the equal protection of the laws, or of equal privileges and immunities under the laws.” In 1983, in United Brotherhood of Carpenters, Local 610 v. Scott, the Supreme Court declared that § 1985(3)’s equal protection clause does not create a substantive right to equal protection: It just entitles plaintiffs to a damage remedy when they are denied equality rights guaranteed by some other source of law. But that holding applies only to the equal-protection portion of § 1985(3), not to the support-or-advocacy clauses. As the Supreme Court recognized in Kush v. Rutledge, the various provisions of § 1985 use different language and aim at different kinds of conspiracies, and each must be interpreted on its own terms.
Indeed, § 1985 was never enacted as a single unit of legislation. It is an administrative recodification only. What Congress enacted was § 2 of the Klan Act, which contained 20 or so clauses prohibiting various kinds of conspiracies, including conspiracies to overthrow the federal government, to levy war against the United States, to prevent the execution of federal law, and to steal federal property, as well as what are now the equal protection and support-or-advocacy clauses of § 1985(3). Most of those clauses are obviously substantive: Nobody thinks, for example, that a law prohibiting the overthrow of the government is a vehicle for remedying violations of rights specified elsewhere. The clauses prohibiting conspiracies to deny equal protection of the laws are reasonably interpreted as parasitic on other substantive laws, as Carpenters explained. But in that respect, they differ from most of the clauses in § 2 of the Klan Act.
There is therefore no reason to think that the support-or-advocacy clauses must be read like the equal protection clauses, rather than like the substantive clauses of § 2. Nothing about § 2 of the Klan Act indicates that the equal protection and support-or-advocacy clauses should be regarded as a set: In § 2, those clauses do not even appear consecutively. To decide that the support-or-advocacy clauses should be read in pari materia with the equal protection clauses (and differently from most of the other clauses of § 2) is to give legal significance to the administrative decision of the redactors of the U.S. Code to group those clauses together as § 1985(3)—something that the Supreme Court in Kush specifically said should never be done. Whether the support-or-advocacy clauses create a substantive right for redress in cases of conspiracies to deny support or advocacy or merely create a remedy for denials of rights specified elsewhere (and in particular the right to vote) is therefore a question that must be settled on the basis of what those clauses say, not on the basis of what might be true of § 1985(3)’s equal protection clauses.
The support-or-advocacy clauses do not read like they merely create remedies for rights established elsewhere. They name specific conduct for which plaintiffs are entitled to redress. Nor do the support-or-advocacy clauses speak of the right to vote. They speak of conspiracies to interfere with or injure persons giving support or advocacy for candidates for political office. The Davis court conducted a careful analysis of the text and legislative history of the statute, as well as the relevant case law, and concluded that all three supported the statute’s plain meaning, which “prevents (among other things) conspiracies to prevent someone from advocating for a federal candidate for office or injury someone for such advocacy.” As the court noted, “[t]he Reconstruction Congress referred directly to the right to vote when it wanted to,” using the term “vote” or “voting” at least six times in a related statute the year before, and using the term “vote” as distinct from “support or advocacy” in the relevant clauses themselves.
Next, the district court in Davis correctly concluded that the support-or-advocacy clauses apply to purely private conspiracies and not only to conspiracies involving state actors. In the case at hand, that matters because the people who organized and participated in the Trump Train were private citizens rather than state officials. The plain text of § 1985(3) creates no state action requirement—nothing in the language of the support-or-advocacy clauses limits coverage to conspiracies involving state actors. The defendants’ argument that claims under the support-or-advocacy clauses require state action (following the Eighth Circuit’s 1990 opinion in Gill) is premised on the idea that support and advocacy are forms of political expression, such that the rights a plaintiff asserts in a claim under those clauses are essentially First Amendment rights—and the First Amendment restricts only government actors. But Davis correctly noted that argument fails “because it rests on the premise that [the clauses are] a purely remedial statute that draws from and depends on the First Amendment (among other rights).” Having rejected that interpretation and concluded that the support-or-advocacy clauses create substantive causes of action on their own authority, the district court properly concluded that there is no reason to think those causes of action can be brought only in cases of conspiracies involving state actors. After all, the court noted, “[t]here is no language in [the clauses] suggesting a state action requirement[.]”
The Davis court also properly rejected the idea that a claim under the support-or-advocacy clauses requires a showing of race- or similar class-based animus. Under the Supreme Court’s 1971 decision in Griffin v. Breckenridge, a claim under the equal protection component of § 1985(3) does require such a showing. The idea that the same requirement applies to claims under the support-or-advocacy clauses is rooted, once again, in the idea that what is true of one clause of § 1985(3) must be true for all other clauses of § 1985(3). As explained, that idea is a fallacy. Where a clause creates a cause of action for a conspiracy to deny equal protection, a requirement of racial or other class-based animus can make sense. Such animus is, after all, the heartland of equal protection as generally understood. But as noted in Kush, the support-or-advocacy clauses “contain no language requiring that the conspirators act with intent to deprive their victims of the equal protection of the laws.” By their terms, they cover all conspiracies to impede the giving of lawful support and advocacy in favor of candidates for federal office. Making such conspiracies actionable regardless of whether they are racially motivated is precisely the point of having the support-or-advocacy clauses.
On the question of whether the statute’s language of “force, intimidation, or threat” is limited to the same sorts of conduct that the Klan engaged in during Reconstruction, the Davis court simply followed the en banc Fifth Circuit’s holding in Kinney v. Weaver. In that decision, the Fifth Circuit held it erroneous to assume “that the statute’s reach is restricted to those factual scenarios that the enacting legislature could have specifically contemplated.” Rather, “the Supreme Court has instructed that Reconstruction-era civil rights statutes are to be given a sweep as broad as their language … ensuring that their protections remain relevant to modern circumstances.” Again, as the district court noted, “what matters is the statute’s plain language—not the Klan’s chosen tactics in 1871.” The Davis court also noted that only the first support-or-advocacy clause requires a showing of “force, intimidation, or threat.” The second support-or-advocacy clause prohibits conspiracies “to injure any citizen in person or property on account of … support or advocacy,” without reference to force, intimidation, or threat. In Haddle v. Garrison, the Supreme Court explained that the phrase “injured in … person or property” refers simply to “principles of tort law.” So as a result, the plaintiff in a support-or-advocacy suit can succeed either by showing “force, intimidation, or threat” or by showing an injury cognizable in tort. There is no requirement to do both.
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