Update: Here is the link to Judge Debevoise’s 2009 opinion modifying the original 1982 consent order, binding on the RNC and all Republican state committees, that was upheld by the Third Circuit.
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In addition to this consent decree that covers the republicans, please remember that there are federal laws as well that prohibit voter intimidation by individuals and organizations who may claim they are not covered by this court order:
The Voting Rights Act of 1965 and the National Voter Registration Act of 1993 prohibit challenging any citizen’s right to vote based upon race or other characteristics, and prohibit the intimidation of any person for exercising their right to vote. Although challenges are permitted under various state laws, challenges that are frivolous or based on insufficient evidence of ineligibility are not allowed.
Every Democratic observer or Election Protection volunteer needs to be well versed in these laws as well as the laws of the state in which they will be acting as monitors of the election process. Most states do not allow people to challenge an individual’s right to vote, and of those that do (including Ohio), most require an official observer to make the challenge. Be aware of this so that you can present the facts and laws that apply to poll workers, many of whom may not be aware of the state and federal laws and court orders that govern the right to vote.
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Before I get into the meat of the court orders and consent decrees that govern the actions of the RNC with respect to voter suppression efforts let me give any Democratic observers at polling places this year the short list of things Republicans may not do to intimidate voters or otherwise discourage citizens from exercising their right to vote.
Republican observers at polling places 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
- Handout any 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
Now on to the specifics of the Consent Decree to which the Republican National Committee agreed in 1982, and which, as modified, still apples to them and every state Republican Party Committee, as well as anyone who works for them or acts as their agent.
In 1982, the Democratic National Committee obtained a consent decree from New Jersey District Judge Dickinson R. Debevoise that required the Republican National Committee and all its agents and employes from violating election laws and specifically prohibited the following voter suppression efforts:
[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.
That consent order is binding on all of the RNC’s agents, servants, and employees, “whether acting directly or indirectly through other party committees.” Furthermore, the consent decree issued by Judge Debevoise is still valid, as modified in 1987 and 2009. The Third Circuit Court of Appeals ruled this year against the RNC in a case in which the RNC sought to have the consent decree voided. Their reason: continued violations of the consent order by the RNC over the last thirty years. From the Third Circuit’s opinion, dated March 8, 2012.
[Past the fold, I’ve highlighted relevant sections of the Third Circuit’s opinion which is not republished in its entirety here due to its length, though I encourage anyone, but especially lawyers involved in Election Protection activities to read in its entirety]:
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 allegedly created a voter challenge list by mailing sample ballots to individuals in precincts with a high percentage of racial or ethnic minority registered voters and, then, including individuals whose postcards were returned as undeliverable on a list of voters to challenge at the polls. 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. […]
B. 1987 Enforcement Action and Consent Decree Modifications
In Louisiana during the 1986 Congressional elections, the RNC allegedly created a voter challenge list by mailing letters to African-American voters and, then, including individuals whose letters were returned as undeliverable on a list of voters to challenge. A number of voters on the challenge list brought a suit against the RNC in Louisiana state court. In response to a discovery request made in that suit, the RNC produced a memorandum in which its Midwest Political Director stated to its Southern Political Director that “this program will eliminate at least 60,000–80,000 folks from the rolls . . . If it’s a close race . . . which I’m assuming it is, this could keep the black vote down considerably.” Democratic Nat’l Comm. v. Republican Nat’l Comm., 671 F. Supp. 2d 575, 580 (D.N.J. 2009) (citing Thomas Edsall, Ballot Security Effects Calculated: GOP Aide Said Louisiana Effort “Could Keep the Black Vote Down,” WASH. POST, OCT. 24, 1986 at A1. Although the DNC was not a party to the action in Louisiana state court, it brought an action against the RNC for alleged violations of the Consent Decree after this memorandum was produced.
The RNC and the DNC settled the lawsuit, this time by modifying the Consent Decree, which remained “in full force and effect.” (App. at 404.) In the 1982 Decree, the RNC had agreed to specific restrictions regarding its ability to engage in “ballot security activities,” but that Decree did not define the term “ballot security activities.” (App. at 401.) 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.” Democratic Nat’l Comm., 671 F. Supp. 2d at 581. The modifications clarified that the RNC “may deploy persons on election day to perform normal poll watch[ing] functions so long as such persons do not use or implement the results of any other ballot security effort, unless the other ballot security effort complies with the provisions of the Consent Order and applicable law and has been so determined by this Court.” (App. at 405.) The modifications also added a preclearance 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.
C. 1990 Enforcement Action
In 1990, the DNC brought a lawsuit alleging that the RNC violated the Consent Decree by participating in a North Carolina Republican Party (“NCRP”) program. The DNC alleged that the RNC had violated the Decree in North Carolina by engaging in a program of the North Carolina Republican Party (“NCRP”) in which 150,000 postcards were sent to residents of predominantly African-American precincts. This program allegedly attempted to intimidate voters by warning that it is a “federal crime . . . to knowingly give false information about your name, residence or period of residence to an election official.” Democratic Nat’l Comm., 671 F. Supp. 2d at 581. The postcards falsely stated that there was a 30-day minimum residency requirement prior to the election during which voters must have lived in the precinct in which they cast their ballot.
The District Court found that the DNC failed to establish that the RNC conducted, participated in, or assisted in the postcard program. However, the Court also found that the RNC violated the Consent Decree by failing to give the state parties guidance on unlawful practices under the Consent Decree or copies of the Decree when the RNC gave them ballot security instructional and informational materials. The Court held that the RNC must provide a copy of the Consent Decree, or information regarding unlawful practices under the Consent Decree, along with any such instructional or informational materials that the RNC distributes in the future to any state party.
D. 2004 Enforcement Action (the “Malone enforcement action”)
In 2004, the week before the general election for President, Ebony Malone (“Malone”), an African-Americanresident of Ohio, brought an enforcement action against the RNC, alleging that the RNC had violated the Consent Decree by participating in the compilation of a predominantly-minority voter challenge list of 35,000 individuals from Ohio. Malone’s name was on the list. To settle the lawsuit, the RNC and RSC entered into the Consent Decree at issue here. […]
F. Motion to Vacate or Modify the Consent Decree
On November 3, 2008, shortly after the District Court denied the DNC’s Motion for a Preliminary Injunction, the RNC submitted the Motion to Vacate or Modify the Consent Decree that is currently at issue. The RNC submitted several arguments in support of its motion: (1) since the 1987 modification, the enactment of (a) the National Voter Registration Act of 1993 (the “NVRA” or “Motor Voter Law”), 42 U.S.C. §§ 1973gg et seq., (b) the Bipartisan Campaign Reform Act of 2002 (“BCRA”), 2 U.S.C. §§ 431 et seq., and (c) the Help America Vote Act of 2002 (“HAVA”), 42 U.S.C. §§ 15301 et seq. increased the risk of voter fraud and decreased the risk of voter intimidation; (2) the Consent Decree extends to types of conduct that were not included in the initial 1981 Complaint; (3) the Decree was interpreted too broadly and inconsistently with the parties’ expectations at the time they entered the 1982 and 1987 settlements; and (4) the Decree violates the First Amendment by restricting communications between the RNC and state parties.
The District Court held an evidentiary hearing on the motion during May 5 and 6, 2009 and also received post-hearing submissions from the parties. On December 1, 2009, the District Court issued an opinion, denying the motion to vacate the Decree. […]
Thus, although the District Court denied the request to vacate the Decree, the Court granted the motion to modify the Decree. […]
[Note: The District Court subsequently modified the Consent decree, though not to the satisfaction of the RNC. The RNC filed a timely appeal to the Third Circuit regarding Judge Debovoise’s modifications to the Consent Decree. What follows are the Third Circuit’s discussion of the RNC appeal and its decision.]
… Despite the RNC’s arguments before our Court, any restrictions on the RNC’s ability to communicate and associate with state and local parties are self-imposed and waived by the RNC entering into the Decree in 1982 and 1987.
In 2004, the District Court issued an Order barring the RNC from using a voter challenge list targeting precincts with large African-American populations that the RNC had compiled in coordination with the Ohio Republican Party. The District Court found that the RNC had violated the Decree both procedurally and substantively by participating with the Ohio Republican Party in devising and implementing the ballot security program and failing to obtain preclearance for the program. The 2004 Order does not impose any additional limitation on the speech rights of the RNC beyond those present in the 1982 and 1987 Decree and modifications, in which the RNC consented and agreed to certain restrictions of its rights. Hence, neither the 1990 nor 2004 Orders present a basis for a First Amendment challenge.
In 1982 and 1987, the RNC voluntarily agreed to create and abide by the very provisions that it now challenges as unconstitutional. The District Court’s enforcement of the Decree against the RNC does not result in a First Amendment violation. The District Court did not abuse its discretion in denying the request to vacate the Decree on this basis. […]
Despite the RNC’s bald assertion to the contrary, the availability of alternative voting mechanisms is not a factual change that prevents polling place voter suppression and intimidation. The RNC has presented no evidence demonstrating how alternative voting mechanisms, such as allowing voters to vote prior to Election Day or to mail in their votes, would prevent the RNC from “using, [or] appearing to use, racial or ethnic criteria in connection with ballot integrity, ballot security or other efforts to prevent or remedy suspected vote fraud” at polling stations. (App. at 404–05.) Furthermore, as the District Court notes, voters should not have to avoid voting at polling stations on Election Day in order to avoid voter intimidation. […]
The RNC argues that vacating the Decree would benefit the public interest by allowing the RNC to engage in programs attempting to prevent voter fraud, which the RNC alleges are hampered by the Decree. Additionally, the RNC contends that there is little need to prevent the intimidation and suppression of minority voters. Specifically, the RNC asserts that voter fraud is a danger and that “political parties, candidates, the Government, and the public all have an undisputed interest in protecting the integrity of the election process.” (Appellant’s Br. at 50.) Thus, the RNC argues that it should be permitted to address voter fraud free from the constraints of the Decree.
If the RNC establishes that “a durable remedy has been implemented, continued enforcement of the order is not only unnecessary, but improper.” Horne v. Flores, — U.S. —-, —-, 129 S. Ct. 2579, 2595 (2009) (holding that the United States Court of Appeals for the Ninth Circuit employed a heightened standard for its Rule 60(b)(5) inquiry instead of the required flexible approach). However, the RNC has pointed to no remedy other than the Decree that prevents the RNC from “using, [or] appearing to use, racial or ethnic criteria in connection with ballot integrity, ballot security or other efforts to prevent or remedy suspected vote fraud.” (App. at 404–05.) […]
The District Court rejected the RNC’s argument that the Decree must be vacated or modified because the risk of voter fraud outweighs the risk of voter suppression and intimidation. As the District Court correctly points out, the Decree only requires preclearance for programs involving the prevention of in-person voter fraud. Furthermore, the District Court has never prevented the RNC from implementing a voter fraud prevention program that the RNC has submitted for preclearance, at least in part, because the RNC has never submitted any voter fraud prevention program for preclearance. […]
… Even if the public has an unmet need for the prevention of in-person fraud, the Decree does not prevent the RNC from combating in-person voter fraud if it obtains preclearance. If the risk of voter fraud is as great and consequential as the RNC alleges and an RNC voter security program is a significant part of efforts needed to prevent that voter fraud, it would seem that the RNC would have attempted to obtain preclearance for a voter security program at least once since 1987.
The RNC argues that “minority voters are not being suppressed,” and, thus, the Decree does not serve public interest. (Appellant’s Br. 33.) The District Court noted as an example, however, that the voter-challenge list in Malone included 35,000 registered voters who were predominantly minorities. Without the enforcement of the Decree provisions, these voter-challenge lists that are racially-targeted, in intent or in effect, could result in the intimidation and deterrence of a number of voters.
When confronted with such targeted voter-challenge lists, some eligible voters may choose to refrain from voting instead of waiting for the verification of their own eligibility or that of others ahead of them in line. […]
The District Court, accordingly, modified the Decree in the following ways: (1) allowed only parties to the Decree, the DNC and NJDSC, to bring an enforcement action under the Decree; (2) decreased the preclearance notice requirement from twenty days to ten days; (3) provided clearer definitions and examples of “ballot security” and “normal poll activities; and (4) added an eight-year expirationwatching” date […]
The Third Circuit then went on to uphold the District Court’s modifications regarding the consent order, including what constitutes “normal poll watching activity.”
[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.
Since the actions I bolded above are all acts that Republicans have frequently done over the past 30 years, Democratic poll watchers need to know that such acts by Republicans at polling places are impermissible and in violation of the consent decree. Let me list them for you again:
Republican observers at polling places 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
- 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
If you take nothing more away from this diary, please remember those four things that Republicans are not permitted to do at polling places this year to intimidate and discourage people from voting.
For lawyers, please remember that all voter caging schemes (i.e., challenge lists) are a direct violation of the Consent Decree, and that Republican officials must give Democrats and the Court ten days notice of any program they wish to implement to prevent “in-person voter fraud” and that Republicans must obtain preclearance from the Federal District Court before the Republicans my carry out such programs.
Thank you.
