From yesterday's Fifth Circuit order in In re Mesaros, decided by Judges Edith Brown Clement, Kurt Engelhardt, and Andrew Oldham:
Respondents allege that on October 30, 2020, they were travelling through Texas in a Biden-Harris tour bus. According to respondents' complaint, Delores Park, Joeylynn Mesaros, and Robert Mesaros (collectively "petitioners") coordinated with others to form a "Trump Train" that surrounded the Biden-Harris bus, blocked its path, and forced it to slow down to 15-25 miles per hour. One participant in the "Train" (not a party to these mandamus proceedings) allegedly side-swiped another vehicle. On respondents' telling, the "Trump Train" caused "significant psychological harm" and resulted in the cancellation of the remaining Biden- Harris campaign events in Texas.
Respondents filed a complaint asserting the "Trump Train" amounted to an actionable conspiracy to thwart, by intimidation, their lawful support of the Biden-Harris campaign. For their cause of action, respondents relied on 42 U.S.C § 1985(3)'s Support-or-Advocacy Clause. Congress passed the Support-or-Advocacy Clause in the Ku Klux Klan Act of 1871. It provides, in relevant part, that one "injured in his person or property" by "two or more persons conspir[ing] to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President … may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators."
Petitioners moved to dismiss respondents' claim on the ground that the Support-or-Advocacy Clause only supplies a cause of action against conspiracies that involve state action or are motivated by racial animus, which respondents did not allege. The district court denied the motion ….
Generally speaking, such denials of motions to dismiss aren't immediately appealable—the defendants have to wait until a final judgment (for instance, after a trial, if the case goes that far), and then appeal if they have lost at that point. Nonetheless, there are exceptions to that principle:
