A federal judge has refused to throw out claims of voter intimidation brought against the founders of a Colorado organization that believes the 2020 presidential election was fraudulent.

On Jan. 31, U.S. District Court Judge Charlotte N. Sweeney agreed it is a matter to be decided at trial whether Shawn Smith, Ashely Epp and Holly Kasun are liable for violating the Voting Rights Act and the Reconstruction-era Ku Klux Klan Act. The facts are disputed, Sweeney wrote, about whether agents of the defendants’ organization, the U.S. Election Integrity Plan, went door-to-door in the wake of the election and intimidated voters by interrogating them about their voting history.

However, she agreed to dismiss USEIP itself from the lawsuit. While Sweeney believed the U.S. Court of Appeals for the 10th Circuit requires her to rule that unincorporated groups, such as USEIP, are not “persons” to be sued, Sweeney took the unusual step of openly criticizing the 10th Circuit for restricting plaintiffs’ ability to hold alleged civil rights violators accountable.

Under the 10th Circuit’s precedent, she wrote, “civil rights organizations cannot seek relief against unincorporated associations … to halt an allegedly discriminatory conspiracy committed by the group’s members – which is entirely contrary to the purpose and history of the Ku Klux Klan Act.”

Last year, the Colorado Montana Wyoming State Area Conference of the NAACP, the League of Women Voters of Colorado and Mi Familia Vota sued USEIP and its three founders. They alleged agents of USEIP, which is not affiliated with the government, went door-to-door, sometimes while armed, and “often” targeted Democratic areas or communities of color. There, the volunteers allegedly interrogated voters about whether they participated in the 2020 election and how they cast their ballots. 

The defendants did not dispute they canvassed 9,472 homes, subsequently releasing a report that claimed 7-12% of all contests in Colorado’s 2020 election “may be questionable” based on alleged irregularities. Smith, when asked in a deposition whether some election fraud should merit the death penalty, responded, “Yeah.”

Independent, post-election analysis has found no widespread voter fraud in the 2020 election.

Last April, U.S. District Court Chief Judge Philip A. Brimmer found that all three plaintiffs had standing to sue as organizations. They had credibly alleged USEIP’s activities caused them to divert their own resources away from voter engagement and toward monitoring and counteracting USEIP’s alleged intimidation, Brimmer ruled.

The defendants then attempted a new line of argument to combat the allegations.

“Plaintiffs have no evidence that any of the Defendants intimidated, coerced, threatened, or attempted to intimidate, coerce or threaten Colorado voters,” wrote attorneys for the defendants. They also argued that the plaintiffs, as nonvoters, could not seek to vindicate the rights of voters who were intimidated, and that the relevant federal law did not apply to private organizations like USEIP.

The plaintiffs responded that they were suing because they were directly harmed by having to divert resources. Further, the Ku Klux Klan Act, enacted to combat the KKK’s terrorism of Black voters in the South, did apply to privately-organized conspiracies.

“A loosely formed group of individuals, such as UESIP, is exactly the type of defendant that the drafters of the Ku Klux Klan Act contemplated when drafting the Act,” the plaintiffs’ lawyers wrote.

Sweeney, who inherited the case when President Joe Biden appointed her last year, concluded the defendants had the opportunity to argue to Brimmer that the civic organizations lacked standing to sue on behalf of voters whose rights were violated. But they did not. Therefore, they could not belatedly raise the issue to escape the lawsuit.

She largely rejected the defendants’ other arguments. The judge noted that the plaintiffs had produced at least one voter who described her contact with USEIP agents and her own feelings of intimidation. Sweeney decided the plaintiffs’ voter intimidation claims merited a trial, where they would not need to prove USEIP’s founders specifically intended to intimidate voters.

However, she agreed USEIP itself could not remain as a defendant. Sweeney pointed to a 2006 decision of the 10th Circuit, which has jurisdiction over federal appeals in Colorado and five neighboring states. In Lippoldt v. Cole, the circuit held that an unincorporated anti-abortion organization in Kansas could not sue after Wichita officials denied the group parade permits. The group was not a “person” who could sue or be sued for civil rights violations.

While applying the Lippoldt decision as required, Sweeney agreed with the Atlanta-based 11th Circuit, which called out its sibling court in Denver for “stand(ing) alone against the trend” of treating unincorporated groups as persons.

“By ignoring the context of the Ku Klux Klan Act, and disregarding congressional action thereafter,” she wrote in protest of the Lippoldt decision, “it does appear that this result is contrary to the text and meaning” of the law.

A pretrial conference in the case is scheduled for May.

The case is Colorado Montana Wyoming State Area Conference of the NAACP et al. v. United States Election Integrity Plan et al.