No ‘Hyperbole’ About Robocall to Suppress Black Vote, Says Judge's Order

U.S. District Judge Victor Marrero for Southern New York granted summary judgment against defendants Jacob Wohl and Jack Burkman for their roles in initiating a threatening and intimidating robocall designed to suppress Black citizens' mail-in votes in the run-up to the 2020 election, said the 111-page order he signed Wednesday (docket 1:20-cv-08668).

New York Attorney General Letitia James (D), a plaintiff-intervenor in the case since May 2021, hailed the ruling in a statement in which she vowed that anyone who attempts to take away the right to vote “will be met with the full force of the law.” James entered the case to prosecute claims that Whol and Burkman violated the New York Executive Law and other state statutes. Eight individual plaintiffs, plus the National Coalition on Black Civic Participation, brought the original October 2020 complaint.

Defendants Wohl and Burkman “set into motion a full-scale voter suppression operation during the summer of 2020 to discourage eligible voters from voting” by targeting mail-in voting in the 2020 election, said Marrero’s order. They recruited a Black voice actress, Jana Hunt, to record the intimidating robocall that would be targeted toward voters in Black neighborhoods in Atlanta, Charlotte, Cleveland, Detroit, Milwaukee, Philadelphia and Richmond.

In the robocall, Hunt, posing as Tamika Taylor from Project 1599, said: “Mail-in voting sounds great, but did you know that if you vote by mail, your personal information will be part of a public database that will be used by police departments to track down old warrants and be used by credit card companies to collect outstanding debts?” The script Wohl and Burkman gave Hunt to read also said the Centers for Disease Control and Prevention was pushing to use mail-in voting records “to track people for mandatory vaccines.”

In addition to the specific harms the call threatened, said Marrero’s order, Wohl and Burkman “dressed” the call “with a veil of legitimacy to mislead its listeners into believing the statements made in the call were true.” The call framed Wohl and Burkman’s company, Project 1599, as a civil rights organization, it said.

The call “markedly lacked any outlandish details or other cues that may indicate to an ordinary listener that it should not be taken seriously,” said Marrero’s order. The individual plaintiffs’ reactions to the robocall “demonstrate that it was not perceived as hyperbolic,” it said. “It is thus disingenuous” for the defendants to characterize their conduct as “rhetorical hyperbole,” when the facts establish that the robocall “was broadcasted as a threat to deter Black voters from participating in the 2020 Election and its listeners interpreted it as such,” it said.

For those reasons, the defendants’ First Amendment defense fails, said Marrero’s order. The plaintiffs “are entitled to summary judgment” on their claim the defendants violated the 1965 Voting Rights Act and denies the defendants’ motion for summary judgment to dismiss that claim, the court said. He also granted summary judgment in the plaintiffs’ favor that Wohl and Burkman also violated the 1964 Civil Rights Act and the 1871 Ku Klux Klan Act.

The plaintiffs argue the target of the conspiracy was Black voters, “but also reached other eligible and lawfully registered voters,” including each of the individual plaintiffs, said Marrero’s order. There’s “no dispute” that the defendants’ robocall reached more than 85,000 numbers, including nearly 5,500 in New York alone, “no doubt comprised of eligible voters.” Each individual plaintiff received the robocall, “and were all registered voters planning to vote” in the 2020 election, it said.

The action remains pending on the scope of relief sought against the defendants, including damages, attorney’s fees and costs, said Marrero’s order. He ordered the plaintiffs to file a joint letter by March 28 on the “prospective relief sought.” The defendants’ response is due 10 days later, and the plaintiffs will have seven days thereafter to file a reply.