Wyoming, Montana and Colorado voter-rights groups can wage a new civil trial against a group of private citizens who canvassed door-to-door to investigate whether the 2020 presidential election was fraudulent, a three-judge panel of the 10th Circuit Court of Appeals ruled Monday.
The voter rights groups “were not fully heard at trial,” according to a panel comprised of judges Veronica Rossman, Michael Murphy and Richard Federico.
Decisions from the 10th Circuit become patterns or precedents over the arguments and decisions unfolding in Wyoming’s U.S. District Court.
Shortly after the 2020 election, Colorado residents Shawn Smith, Ashley Epp and Holly Kasun formed an unincorporated association, the United States Election Integrity Plan (USEIP). In 2021, the group recruited volunteers and canvassed thousands of homes and voters in Colorado to verify voter-roll information.
The volunteers asked voters if they’d engaged in voter fraud, whether they’d participated in the 2020 election, and whom they’d voted for, court documents say.
Three voter-rights groups — the Colorado Montana Wyoming State Area Conference of the NAACP, League of Women Voters, and Mi Familia Vota — filed a lawsuit against the group and the three co-founders in March 2022 to stop those activities.
The groups called those canvassing efforts voter intimidation, and invoked two federal laws against it: the Voting Rights Act and the Ku Klux Klan Act.
Their civil complaint alleged the volunteers were sometimes armed and wore official-looking badges.
Bench Trial
Smith had, according to the complaint, told attendees at a February 2022 event at a church called The Rock that he had evidence of criminal conduct by Colorado’s secretary of state.
“If you’re involved in election fraud then you deserve to hang. Sometimes the old ways are the best ways,” Smith said, according to a court-exhibit video that didn’t make it into the ultimate bench trial in July 2024.
The USEIP co-founders asked the court to dismiss their group from the lawsuit.
U.S. District Court Judge Charlotte Sweeney of Colorado granted that request in January 2023. She reasoned the federal laws invoked don’t allow people to sue an unincorporated group for voter intimidation.
Sweeney applied 10th Circuit precedent from a related law allowing lawsuits for constitutional-rights infringements – 42 U.S. Code Section 1983 – but she applied that out of context, the three-judge panel ruled Monday.
The error changed what evidence and tactics were allowed in trial, and affected the voter-rights’ groups substantial rights, the panel ruled. So the groups can now wage a new trial.
The voter-rights groups had, before this appeal and before losing the case, proceeded to a bench trial against the three individual co-founders starting July 15, 2024.
A bench trial uses the judge as the verdict-finder, rather than a jury.
At trial, Sweeney blocked the voter-rights groups’ counsel from showing the video in which Smith reportedly called for hanging people for election fraud.
She had the attorney question Smith about what he said instead.
According to the Monday remand by the higher court, Sweeney didn’t give good legal reasoning for blocking the video. The three civil defendants also didn’t object to that piece of evidence before trial.
A Little Evidence From Trial
This decision doesn't hand the win to the voter-rights groups, which would still have to prove their voter-intimidation case to win.
The remand order says that Beth Hendrix, executive director of the League of Women Voters of Colorado, testified at trial that she had no personal knowledge of USEIP or its volunteers intimidating any certain voter.
Rather, the order notes, the group filed its allegations based on media reports of intimidation.
Yvette Roberts, of Mesa County, Colorado, was the only canvassed voter whom the voter-rights groups called as a witness.
Two people knocked on her door and wore badges with the words "Colorado election" written on them, the order relates from her testimony. They didn't give her "any clue who they were or who they were working with," Roberts told the court.
She said they knew her name, where she was living, her phone number and affiliation with political parties. So she assumed they were "working off a voter roll," the order says.
The canvassers told her they were "investigating things" and asked her questions about who lived with her and if they were voters and/or citizens. They left when she indicated she wanted them "to leave now," the order says.
The encounter was intimidating, Roberts testified, but not enough to keep her from voting.
Clair McFarland can be reached at clair@cowboystatedaily.com.
