All About The RNC’s 1982 Consent Decree To Stop Violating The Voting Rights Act

August 15th, Pennsylvania after Donald Trump calls for a voter intimidation program led by law enforcement.

Donald Trump suggested a voter intimidation program led by law enforcement — documented in this NBC News report — which would violate a 35-year-old legal agreement set to expire next year which bars the Republican National Committee and it’s agents from voter intimidation tactics and discrimination against minorities.

This is a synopsis of the latest court case, a 2012 federal appeals court decision is below:

DEMOCRATIC NATIONAL COMMITTEE; NEW JERSEY DEMOCRATIC STATE COMMITTEE; VIRGINIA L. FEGGINS; LYNETTE MONROE

v.

REPUBLICAN NATIONAL COMMITTEE; NEW JERSEY REPUBLICAN STATE COMMITTEE; ALEX HURTADO; RONALD C. KAUFMAN; JOHN KELLY

This is an excerpt of a legal ruling shared below in full, which is the latest relevant legal decision in a Consent Decree agreed to by the Republican National Party and the Democratic National Party to limit the RNC’s “ballot security” activities aimed at “fighting voter fraud” and detailed below:

During the 1981 New Jersey gubernatorial election, the DNC, the New Jersey Democratic State Committee (“DSC”), Virginia L. Peggins, and Lynette Monroe brought an action against the RNC, the New Jersey Republican State Committee (“RSC”), John A. Kelly, Ronald Kaufman, and Alex Hurtado, alleging that the RNC and RSC targeted minority voters in an effort to intimidate them in violation of the Voting Rights Act of 1965 (“VRA”), 42 U.S.C. §§ 1971, 1973, and the Fourteenth and Fifteenth Amendments to the Constitution of the United States.

The RNC also allegedly enlisted the help of off-duty sheriffs and police officers to intimidate voters by standing at polling places in minority precincts during voting with “National Ballot Security Task Force” armbands. Some of the officers allegedly wore firearms in a visible manner. To settle the lawsuit, the RNC and RSC entered into the Consent Decree at issue here. The RNC and RSC agreed that they would:

[I]n the future, in all states and territories of the United States:
(a.) comply with all applicable state and federal laws protecting the rights of duly qualified citizens to vote for the candidate(s) of their choice;
(b.) in the event that they produce or place any signs which are part of ballot security activities, cause said signs to disclose that they are authorized or sponsored by the party committees and any other committees participating with the party committees;
(c.) refrain from giving any directions to or permitting their agents or employees to remove or deface any lawfully printed and placed campaign materials or signs;
(d.) refrain from giving any directions to or permitting their employees to campaign within restricted polling areas or to interrogate prospective voters as to their qualifications to vote prior to their entry to a polling place;
(e.) refrain from undertaking any ballot security activities in polling places or election districts where the racial or ethnic composition of such districts is a factor in the decision to conduct, or the actual conduct of, such activities there and where a purpose or significant effect of such activities is to deter qualified voters from voting; and the conduct of such activities disproportionately in or directed toward districts that have a substantial proportion of racial or ethnic populations shall be considered relevant evidence of the existence of such a factor and purpose;
(f.) refrain from having private personnel deputized as law enforcement personnel in connection with ballot security activities.

****

As modified in 1987, the Decree defined “ballot security activities” to mean “ballot integrity, ballot security or other efforts to prevent or remedy vote fraud.”

The modifications also added a pre-clearance provision that prohibits the RNC from assisting or engaging in ballot security activities unless the RNC submits the program to the Court and to the DNC with 20 days’ notice and the Court determines that the program complies with the Consent Decree and applicable law. Applications by the RNC for determination of ballot security programs by the Court shall be made following 20 days[sic] notice to the DNC . . .

In 2009, the preclearance period is shortened from 20 days to 10 days. Also, “Ballot security” is defined to include “any program aimed at combating voter fraud by preventing potential voters from registering to vote or casting a ballot.” Democratic Nat’l Comm., 671 F. Supp. 2d at 622. The modification also includes a non-exhaustive list of ballot security programs including: the compilation of voter challenge lists by use of mailings or reviewing databases maintained by state agencies such as motor vehicle records, social security records, change of address forms, and voter lists assembled pursuant to the HAVA; the use of challengers to confront potential voters and verify their eligibility at the polls on either Election Day or a day on which they may take advantage of state early voting procedures; the recording by photographic or other means of voter likenesses or vehicles at any poling place; and the distribution of literature informing individuals at or near a polling place that voter fraud is a crime or detailing the penalties under any state or federal statute for impermissibly casting a ballot.

“Normal poll-watch function” is defined as “stationing individuals at polling stations to observe the voting process and report irregularities unrelated to voter fraud to duly- appointed state officials.” Id. The modification includes a non-exhaustive list of activities that do and do not fit into the Decree definition of normal poll-watch function.

[O]bservers may report any disturbance that they reasonably believe might deter eligible voters from casting their ballots, including malfunctioning voting machines, long lines, or understaffing at polling places. Such observers may not question voters about their credentials; impede or delay voters by asking for identification, videotape, photograph, or otherwise make visual records of voters or their vehicles; or issue literature outlining the fact that voter fraud is a crime or detailing the penalties under any state or federal statute for impermissibly casting a ballot.

Also in 2009, the judge ruled that:

The Decree does not apply to any RNC program that does not have as at least one of its purposes the prevention of fraudulent voting or fraudulent voter registration.

The Consent Decree expires on December 1, 2017 (eight years after the date of the modification). If, before that date, the DNC proves by a preponderance of the evidence that the RNC violated the Decree, the Decree will extend for eight years from the date of the violation.

Ed. Note: The RNC appealed the decision. The appellate court apparently didn’t think much of their idea:

The RNC asks that our Court vacate a decree that has as its central purpose preventing the intimidation and suppression of minority voters. When, as here, a party voluntarily enters into a consent decree not once, but twice, and then waits over a quarter of a century before filing a motion to vacate or modify the decree, such action gives us pause (Although the RNC’s motion requested that the Court vacate or modify the Decree, the RNC has not referenced any modifications, short of vacatur, that would make applying the Decree equitable in the RNC’s view). Further, the RNC, with the advice of counsel, twice chose to limit indefinitely its ability to engage in certain activities enumerated in the Decree by entering into a decree with no expiration date.

In reviewing the District Court’s opinion and its modifications to the Decree, we do not take lightly Judge Debevoise’s nearly three decades of experience presiding over all matters related to this Decree.

The RNC argued that the ten-day preclearance period should be eliminated because it forces the party to reveal its Election Day strategy to the DNC in order to combat voter fraud and is, therefore, unworkable. The RNC suggested two to three days for preclearance at oral argument, but could not articulate a basis for such a modification other than it would be better than ten days.

The RNC’s argument is wholly speculative. The RNC’s supposed knowledge and experience of unworkability is mere conjecture because, since the preclearance provision was added to the Decree in 1987, the RNC has never attempted to obtain preclearance.

Contrary to the RNC’s argument, the preclearance provision does not require the RNC to disclose its tactical thinking and Election Day strategy except with regard to ballot security activities. The RNC points to no statement of the District Court and no provision of the Decree that requires the RNC “to place equivalent numbers of poll watchers in all precincts.”

On the contrary, the Decree does not require any preclearance for normal poll watching functions, so the Decree would in no way prohibit the RNC from placing different numbers of poll watchers in precincts. Further, there is no basis for any RNC argument that the preclearance provision requires the RNC to place the same number of voter fraud security team members at each precinct. The RNC does not know what level of program detail the District Court would require before granting preclearance.23 The preclearance provision does not prevent the RNC from achieving its objective of normal poll-watching, carrying out approved ballot security programs, or implementing any other Election Day strategies that do not “us[e], [or] appear[] to use, racial or ethnic criteria in connection with ballot integrity, ballot security or other efforts to prevent or remedy suspected vote fraud.”

For example, perhaps the RNC could obtain preclearance for a voter fraud security program that instructs its normal poll watchers that, if they see a person who they believe is voting more than once, they can report that potential fraud to poll workers.

Although the Decree was never intended to prohibit normal poll watching activities, the RNC claims that is has refrained from engaging in normal poll watching activities because the Decree’s definitions of such activities are unclear and it fears it would unintentionally violate the Decree. To address this workability concern, the District Court modified the Decree to provide clearer definitions and examples of “ballot security” and “normal poll watching” activities.

Given these modifications, any hardship to the RNC is not a product of the terms of the Decree. Clarity allows the RNC to engage in normal poll watching activities while still maintaining adherence to fulfillment of the Decree’s purpose. The District Court’s modification is suitably tailored to resolve the prior ambiguity and does not strive to conform to the constitutional floor by allowing the RNC to engage in all activities without preclearance.

The District Court noted that it was imposing a termination date of eight years from its ruling because the Civil Rights Division of the Department of Justice, which is charged with enforcing the Voting Rights Act, also imposes consent decrees with time limits of eight years, which can be extended for good cause.

By adding an eight-year expiration date, December 1, 2017, to the Decree, the District Court modified the Decree to remedy the inequity that it perceived to be caused by the lack of expiration date.

Additionally, the District Court did not abuse its discretion by finding that the RNC had not produced evidence demonstrating a lack of incentive for the RNC to engage in voter suppression and intimidation. The racial and ethnic background of this nation’s political leadership, the RNC’s leadership, and the electorate do not decrease the likelihood that the RNC will suppress minority voters such that prospective application of the Decree is inequitable. If the RNC does not hope to engage in conduct that would violate the Decree, it is puzzling that the RNC is pursuing vacatur so vigorously notwithstanding the District Court’s significant modifications to the Decree.

The RNC’s decision not to engage in normal poll- watch functions or obtain preclearance for voter fraud security programs does not allow us to assume past or future compliance. On the contrary, the RNC’s refusal to engage in normal poll-watch functions or to obtain preclearance may be because the RNC, as it has argued, is not sure of the difference between normal poll-watch functions and voter fraud security programs. That the RNC has not engaged in a normal poll-watch function and has not presented a request for preclearance of a voter fraud security program that does not disproportionately target minority voters leaves open the possibility that the RNC, absent enforcement of the Decree, would not comply with the Decree terms in the future. See BCTC, 64 F.3d at 890 (noting that a party deciding “not to picket at all” does not “show that [the party] has in fact learned how to picket without treading on the prohibitions against secondary boycott contained both in the law and the various negotiated consent decrees”).