Federal judge declines to issue restraining order against alleged voter intimidation

This article was originally published in The Colorado Gazette. 

A federal judge has declined to issue a temporary restraining order after finding no imminent threat from a group who allegedly interrogated and intimidated Colorado voters at their homes, including while armed.

U.S. District Court Chief Judge Philip A. Brimmer rejected a request from three civic organizations to temporarily block the U.S. Election Integrity Plan — a group that believes the 2020 election was rigged — from going door to door to question voters about mail ballots, voter fraud or otherwise intimidate them from voting. While Brimmer acknowledged the concerns about USEIP's activities in 2021, he saw no evidence of current impropriety in violation of federal law.

These allegations are unsupported, and plaintiffs do not show that any of this alleged misconduct is ongoing, such that drastic, emergency relief is necessary," the judge wrote in an April 8 order.

USEIP formed immediately after the 2020 presidential election in response to unproven allegations of widespread irregularities and fraud. Its leader, Shawn Smith, described himself as "the No. 1 most dangerous election denier in Colorado" and said earlier this year that people involved in election fraud "deserve to hang," and 9News reported it as a threat against Secretary of State Jena Griswold.

Last month, the Colorado Montana Wyoming State Area Conference of the NAACP, the League of Women Voters of Colorado and Mi Familia Vota filed a lawsuit against USEIP, alleging voter intimidation and conspiracy to prevent others from voting in violation of the federal Voting Rights Act and the state Ku Klux Klan Act.

According to the lawsuit, USEIP deployed "agents" who wore badges and sometimes introduced themselves "in ways that make voters believe they are associated with government agencies" in door-to-door canvassing of voters. The USEIP representatives reportedly questioned residents about their participation in the 2020 election or accused them of casting fraudulent ballots. They also allegedly took pictures of voters' homes.

"Defendants’ objectives are clear. By planning to, threatening to, and actually deploying armed agents to knock on doors throughout the state of Colorado, USEIP is engaging in voter intimidation," the lawsuit alleged, adding that Black and Latino communities have an even more acute risk, given a history of disenfranchisement.

In addition to USEIP and Smith, the lawsuit also lists group leaders Ashe Epp and Holly Kasun as defendants. Apart from visiting voters' homes, members of USEIP also testified against an election security measure in the Legislature earlier this month.

The plaintiffs requested that Brimmer order the defendants to refrain from their door-to-door activity, from taking and retaining photographs of voters' homes, and to turn over any existing photographs or databases to the court. The temporary measure would last until there could be a decision on a preliminary injunction.

Calling voter intimidation a "lethal threat to democratic government," the three organizations who brought the lawsuit asserted that they have diverted resources from their core missions of voter education and registration in order to address "this new threat to voter safety."

Beth Hendrix, executive director of the League of Women Voters of Colorado, submitted a statement to the court explaining that her group learned about USEIP's door-to-door canvassing in August 2021. "LWVCO is concerned," she wrote, "that voters will be disinterested or disinclined to participate in voting at all and that the damage created by USEIP's efforts will be long-lasting and extremely detrimental to LWVCO's voter turnout efforts."

The defendants did not respond to the request for a temporary restraining order, but instead moved to dismiss the lawsuit. None of the three plaintiffs, the defense argued, had alleged USEIP's activities had injured them specifically. Any plans from the groups to shift resources were "a product of fear," and not the result of the defendants' actions, wrote attorney R. Scott Reisch.

Reisch did not address the validity of the allegations in his court filing, although USEIP issued a report last month acknowledging that volunteers with scripts went door to door in "selected communities" to ask, among other things, whether voters received "extra ballots" and whether their registration was accurate.

Based on 367 affidavits from voters in Douglas, El Paso, Pueblo and Weld counties, the USEIP alleged that up to 11% of voters were "affected by unexplained irregularities."

To receive a temporary restraining order, a party has to show that they will experience probable and irreparable harm in the absence of court action. Brimmer pointed out that the news articles the plaintiffs relied on to illustrate USEIP's activities were several months old. The only reference in their complaint to 2022 was a passing comment that this year's election is "fast approaching."

Hendrix's declaration, Brimmer wrote, "does not indicate that any actions by USEIP or its agents are ongoing, or that any USEIP agent will imminently visit the home of a LWVCO member."

Brimmer ordered the parties to contact his chambers on April 29 to schedule a hearing for a preliminary injunction. He also directed the defendants to respond to the motion for a preliminary injunction.

Although there are a dozen attorneys involved in the lawsuit representing both sides, none of them responded to emails asking about Brimmer's order or the allegations.