National Coalition on Black Civic Participation v. Wohl

Background

The plaintiffs alleged that Jacob Wohl, Jack Burkman, J.M. Burkman & Associates, LLC, Project 1599, and unnamed defendants sent robocalls containing false information intended to discourage recipients from voting by mail. They asserted violations of Section 11(b) of the Voting Rights Act and Section 2 of the Ku Klux Klan Act. On October 28, 2020, the court granted the plaintiffs’ motion for a temporary restraining order. That order required defendants to send prior robocall recipients a court-scripted message stating that a federal court had found the earlier message false and intimidating to voters.

Defendants moved for reconsideration of the temporary restraining order. They also argued that the civil case should be paused because related criminal cases were pending and because defendants had appeared without counsel at an October 26 hearing.

Court’s analysis

The court explained that reconsideration is an extraordinary remedy and generally requires a controlling legal decision or important information that the court overlooked and that could change its conclusion. A party cannot use reconsideration simply to repeat arguments, present new theories, or obtain another hearing on issues already decided.

The court rejected defendants’ argument that the corrective message would force them to make an incriminating statement. It said the message merely announced the court’s findings and did not require defendants to endorse those findings or express personal views about their liability.

The court also held that the Michigan state court’s restriction on robocalls was not a new basis for reconsideration because the court had already considered it when issuing the temporary restraining order. The court had previously concluded that the Michigan restriction did not prohibit the remedial message required by its order, and that its federal order would take precedence if the two orders conflicted.

The court rejected defendants’ proposed evidence concerning differences between voting by mail and voting in person, the use of voter-registration information in locating people, and possible mandatory vaccines. The court found that this information did not establish that the robocall’s statements were true or undermine the court’s earlier finding that the message was false. It also rejected defendants’ argument that voter intimidation under the Voting Rights Act and Ku Klux Klan Act requires threats of physical force, explaining that it had already considered and rejected that argument.

Requested stay

The court separately considered defendants’ request to pause the civil case until the criminal prosecutions ended. It stated that a stay based on the constitutional protection against self-incrimination is discretionary and depends on the circumstances, including overlap between the civil and criminal cases, the status of the criminal case, the parties’ interests, the burden on defendants, and the public interest.

The court found that a stay was not warranted at that stage. Although the criminal and civil cases might involve overlapping facts and defendants had been indicted, the civil case was still at an early stage. The court said the temporary restraining order and corrective-message requirement imposed only minimal burdens, while the plaintiffs and the public had a strong interest in preventing further election-related intimidation before the November 3 election. The court also ruled that the constitutional right to counsel in criminal cases did not govern this civil case.

Disposition

The court denied defendants’ motion for reconsideration and denied their request for a stay. It stated that defendants could later seek other forms of relief, including a tailored stay, a protective order, limits on subpoenas, sealing of confidential materials, or a renewed stay request if specific burdens arose and circumstances changed.