2020 Election Robocall Defendants Seek Reversal of Summary Judgment Against Them

Jacob Wohl and Jack Burkman seek reconsideration of U.S. District Judge Victor Marrero’s March 8 order granting summary judgment against them for their roles in the robocall campaign designed to suppress Black citizens' mail-in votes in the run-up to the 2020 election (see 2303090003), said their letter motion Wednesday (docket 1:20-cv-08668) in U.S. District Court for Southern New York in Manhattan.

U.S. District Judge Jed Rakoff, who was reassigned to the case Nov. 28 (see 2311290024), granted Wohl and Burkman leave during a telephone status conference Tuesday to file a reconsideration motion, on the condition that they do so before midnight Wednesday. A five-day jury trial in the damages phase of the case remains on schedule to begin April 15 (see 2312040022), and the judge, during the Tuesday conference, denied the defendants’ request for leave to file a motion seeking an adjournment of the trial.

Marrero’s decision granting summary judgment was “improper on its face,” said the motion for reconsideration. The decision “still leaves a myriad of issues of fact in this case, including, but not limited to the meaning of what a completed robocall means according to statute and caselaw,” it said. “These same issues go to the crux of the liability portion of this trial, and summary judgment should never have been granted,” it said.

Marrero’s order “was at the least premature and misapprehended key facts and the law,” said the motion. Marrero ultimately decided that the robocall campaign that the defendants orchestrated “did constitute intimidation” among the Black voters who received the robocall, but he should have left that as a question for the jury to decide, said the motion: “We urge this Court to recognize that this was erroneous.”

The motion added that there was “no discernable direct threat” in the robocall campaign to the calls’ recipients from the defendants themselves. Marrero’s summary judgment order held Wohl and Burkman accountable for a “full-scale voter suppression operation” during the summer of 2020 to discourage eligible voters from voting by targeting mail-in voters in Black neighborhoods in Atlanta, Charlotte, Cleveland, Detroit, Milwaukee, Philadelphia and Richmond.

Marrero’s order leaves open questions “as to statutory liability,” said the motion. “We put forward myriad arguments as to why alleged calls made or otherwise facially incomplete should not be counted in the damages phase,” it said.