Gitlin-Adam

Spanish that their personal information would be collected by a newly implemented government
computer system, and that organizations that were “against immigration” might request
information from this system.
And in 2007, the Department of Justice took to trial an intimidation case on behalf of
white voters against an African American, Democratic county official in Mississippi. The
official, Ike Brown, had planned to use a list of only white voters to challenge their eligibility in
a party primary. The court ruled against the government in United States v. Brown. [494 F. Supp.
2d 440 (S.D. Miss. 2007)]. Notably, on appeal the Fifth Circuit Court of Appeals made special
mention of the fact that, “[a]lthough no challenges were in fact brought, testimony revealed the
effects of this list: one voter was so intimidated that she did not vote; another was intimidated to
the point that she did not feel she could approach the polls alone.” [561 F.3d 420 2009]. This
explicit focus on feelings illustrates courts’ willingness to discuss potential intimidation in
subjective terms, even in a case that, because it deviated from the Department of Justice’s
traditional focus on protecting the rights of racial-minority voters, was quite controversial.
In sum, the United States has a long history of voter intimidation, and one in which
discrimination on the basis of race and other legally protected characteristics has been an integral
part. This connection also militates in favor of a subjective standard in a litigation context, as it
may encourage empathy, whether or not a trier of fact shares the characteristics of the person
claiming intimidation.
What We Learned in 2016
Intimidation in the 2016 election reflected the historic trend toward less obviously
invidious collective intimidation, but also reflected some of the spirit of the campaign, which did
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