The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Fifth Circuit on the "Trump Train" / Biden-Harris Bus Lawsuit
The lawyer's true superpower is to turn every case into a case about procedure.
From yesterday's Fifth Circuit order in In re Mesaros, decided by Judges Edith Brown Clement, Kurt Engelhardt, and Andrew Oldham:
Respondents allege that on October 30, 2020, they were travelling through Texas in a Biden-Harris tour bus. According to respondents' complaint, Delores Park, Joeylynn Mesaros, and Robert Mesaros (collectively "petitioners") coordinated with others to form a "Trump Train" that surrounded the Biden-Harris bus, blocked its path, and forced it to slow down to 15-25 miles per hour. One participant in the "Train" (not a party to these mandamus proceedings) allegedly side-swiped another vehicle. On respondents' telling, the "Trump Train" caused "significant psychological harm" and resulted in the cancellation of the remaining Biden- Harris campaign events in Texas.
Respondents filed a complaint asserting the "Trump Train" amounted to an actionable conspiracy to thwart, by intimidation, their lawful support of the Biden-Harris campaign. For their cause of action, respondents relied on 42 U.S.C § 1985(3)'s Support-or-Advocacy Clause. Congress passed the Support-or-Advocacy Clause in the Ku Klux Klan Act of 1871. It provides, in relevant part, that one "injured in his person or property" by "two or more persons conspir[ing] to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President … may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators."
Petitioners moved to dismiss respondents' claim on the ground that the Support-or-Advocacy Clause only supplies a cause of action against conspiracies that involve state action or are motivated by racial animus, which respondents did not allege. The district court denied the motion ….
Generally speaking, such denials of motions to dismiss aren't immediately appealable—the defendants have to wait until a final judgment (for instance, after a trial, if the case goes that far), and then appeal if they have lost at that point. Nonetheless, there are exceptions to that principle:
Of relevance here, when a district court's order involves "a controlling question of law as to which there is substantial ground for difference of opinion," and "immediate appeal from the order may materially advance the ultimate termination of the litigation," the district court judge may certify it for interlocutory appeal. The court of appeals may then "permit an appeal to be taken from such order."
And the Fifth Circuit suggested that this standard for interlocutory appeal was satisfied:
The controlling question of law in this case is whether the Support-or-Advocacy Clause affords respondents a cause of action against petitioners. The Support-or-Advocacy Clause was originally enacted in Section 2 of the Ku Klux Klan Act of 1871. As its name suggests, Congress passed the Klan Act to address the racially motivated "murders, whippings, and beatings committed by rogues in white sheets in the postbellum South." But the Support-or-Advocacy Clause differs from much Reconstruction legislation, and even other provisions of 42 U.S.C § 1985(3), in that its text says nothing about racial discrimination.
Respondents contend this omission was intentional. They say the Klan Act's provisions are divisible into those that protect federal interests and those that regulate interests traditionally subject only to state police power. Congress could regulate the latter category solely pursuant to the powers granted to it by the Reconstruction Amendments. So it restricted some provisions of the Klan Act to racially motivated conspiracies, and possibly to conspiracies involving state action or, alternatively, private conspiracies so "massive and effective" as to "supplant[]" the authorities and "thus satisf[y] the state action requirement.["] But Congress was not so limited in protecting federal interests outside of the Reconstruction Amendments. According to respondents, Congress enacted the Support-or-Advocacy Clause pursuant to Article I's Elections Clause, thus sweeping more broadly than its Reconstruction-Amendments powers and protecting the federal interest in the purity of federal elections.
At least at a 60,000-foot level of generality, respondents have some support for their theory. In The Ku Klux Cases (1884), the Supreme Court affirmed the constitutionality of the since-repealed criminal companion to the Support-or-Advocacy Clause. It did so by pointing to Congress's power to promote "the free, the pure, and the safe exercise of this right of voting." And the Court reasoned this power comes not from the Reconstruction Amendments but rather from Article I's Elections Clause, and the Necessary and Proper Clause. Thus, respondents might be right that racial animus is not a prerequisite to recovery under the Support-or-Advocacy Clause because racial animus is not required by Article I's Elections Clause….
Still, there is unquestionably a "substantial ground for difference of opinion" that necessitates certification of a "controlling question of law" under 28 U.S.C. § 1292(b). Respondents' invocation of the Support-or-Advocacy Clause is unprecedented in the statute's 152-year history. And what little precedent exists cuts squarely against respondents. Without the Support-or-Advocacy Clause, respondents' only federal claim (and hence their only basis for litigating in federal court) fails. By our count, petitioners have at least four grounds for substantial difference of opinion, any one of which necessitates certification under § 1292(b).
First, it is unclear whether the Support-or-Advocacy Clause creates new substantive rights or merely supplies a remedy for violations of rights found elsewhere. Respondents have a law review article co-written by one of their lawyers before he filed this suit. On the other hand, petitioners have a published Eighth Circuit case that says the opposite … (holding the Support-or-Advocacy Clause merely provides a remedy for rights found elsewhere). Petitioners also have Supreme Court cases interpreting the clause immediately preceding the Support-or-Advocacy Clause to supply only a remedy and not to create new substantive rights. See, e.g., Bray v. Alexandria Women's Health Clinic (1993) (interpreting § 1985(3)'s first clause); United Bhd. of Carpenters & Joiners of Am., Loc. 610, AFL-CIO v. Scott (1983) (same); see also Graham v. Connor (1989) (reaching the same conclusion regarding another provision of the 1871 Klan Act: "As we have said many times, § 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred."). If the Support-or-Advocacy Clause merely provides a remedy for rights found elsewhere, then respondents appear to recognize they lose. Perhaps the district court had good reasons for picking respondents' novel theory and law review article—co-written by an attorney in this case—over petitioners' authorities. Regardless, petitioners' judicial authorities constitute an obviously "substantial ground for difference of opinion."
Second, it is unclear how respondents' theory comports with the text of the Support-or-Advocacy Clause. The Clause applies to conspiracies:
to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President … the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
Is the formation of a "Trump Train" a conspiracy to exercise "force, intimidation, or threat"? {As noted above, respondents also point to one defendant who allegedly side- swiped the vehicle of a campaign staffer. But respondents offer no allegation that petitioners conspired to side-swipe anyone. And § 1985(3) reaches only conspiracies.} Or, as the Eighth Circuit held, does § 1985(3) require something more closely related to the postbellum violence that necessitated the statute's enactment? See Gill (holding the phrase "force, intimidation, or threat" means "something much more serious and terrifying than a written notice of cancellation of a contract designating Gill as an agent to sell Farm Bureau insurance"). Does it matter that no one on the Biden-Harris bus was going to vote? Or is the text better read to "provide[] a cause of action when a defendant prevents a plaintiff from exercising his/her voting rights, but not for broad-spectrum claims pertaining to generalized election advocacy"? There are myriad reasons for preferring petitioners' reading of statutory text—not the least of which is that it comports with judicial authorities like Bray and Carpenters, which interpret the clause immediately preceding the Support-or-Advocacy Clause in § 1985(3). Again, that is far more than necessary to create a "substantial ground for difference of opinion." 28 U.S.C. § 1292(b).
Third, it is unclear how respondents' reading of the Support-or-Advocacy Clause comports with Article I of the Constitution. Recall that respondents' theory requires that we hold the Support-or-Advocacy Clause is "valid under Congress's Article I powers." But Congress has no freestanding Article I power to regulate election-related activity. Congress only has power to regulate "The Times, Places and Manner of holding Elections …." And while the Supreme Court has said Congress may promote the "purity" of federal elections, it has only affirmed applications of laws intimately related to ballot-casting. Respondents cite no case that embraces the breathtakingly broad counter-interpretation of Congress's Article I powers. Again, that is far more than necessary to create a "substantial ground for difference of opinion."
Fourth, it is unclear how respondents' reading of the Support-or-Advocacy Clause comports with the First Amendment. There is no doubt that the First Amendment protects speech any reasonable person would find intimidating. See, e.g., Snyder v. Phelps (2011). And even otherwise constitutional applications of statutes that burden a substantial amount of protected speech might violate the First Amendment. These principles at least cut against respondents' theory that they can sue private individuals for the intimidation they associated with the "Trump Train." At the very least, there are serious questions that far exceed the standard for interlocutory certification under § 1292(b).
But wait, you might say: Isn't it up to the district court to decide, in the first instance, whether to certify its order as interlocutorily appealable, on the grounds that it involves "a controlling question of law as to which there is substantial ground for difference of opinion"? It is indeed, and if the district court says no, then that decision is itself not directly appealable. Instead, someone seeking certification would then have to petition the Fifth Circuit for a writ of mandamus, which the defendants here did. And
[A] writ of mandamus … "is an extraordinary remedy for extraordinary causes." We may grant a writ "only if (1) the petitioner has 'no other adequate means' to attain the desired relief; (2) the petitioner has demonstrated a right to the issuance of a writ that is 'clear and indisputable;' and (3) [we], in the exercise of [our] discretion, [are] satisfied that the writ is 'appropriate under the circumstances.'"
On this point, the defendants' appeal foundered, at least temporarily:
It is unclear that this is an extraordinary case. That is for two reasons. First, § 1292(b) creates a substantial role for district courts in the certification of interlocutory appeals. Appellate courts have accordingly been reluctant to compel § 1292(b) certification through writs of mandamus. Our court similarly has said it will compel certification in "very rare" circumstances.
Second, petitioners' § 1292(b) motion raised only questions about whether the Support-or-Advocacy Clause requires allegations of racial animus or the presence of state action. Petitioners are correct that the district court should have granted the § 1292(b) motion on that basis. But that is only one of the four quite obvious bases for certifying the viability of respondents' Support-or-Advocacy claim under § 1292(b). [See above.] We are confident that the district court will reach the correct certification decision if given another opportunity, which suggests petitioners have another adequate means to secure their requested relief. And if petitioners renew their § 1292(b) motion and again lose in the district court, they are free to renew their request for mandamus relief.
So no appeal for the defendants just yet; but the writing seems to be on the wall, and we should expect the case to be back at the Fifth Circuit on the merits.
