BY LINDA BENTLEY | AUGUST 7, 2013
Is it time to dissolve the RNC?
In 1987, “ballot security activities” was defined as “ballot integrity, ballot security or other efforts to prevent or remedy vote fraud.”
PHILADELPHIA – There was voter fraud and intimidation at the polls by Democrats and Obama supporters during the last few elections.
Questions abound as to why the Republican National Committee (RNC) has done nothing about it.
The answer is simple; the RNC entered into a consent decree with the Democratic National Committee (DNC) in 1982, agreeing not to embark on “ballot security activities,” also known as “voter caging.”
The DNC sued the RNC and the New Jersey Republican State Committee in 1981 and the parties entered into a consent decree in 1982 to settle the lawsuit.
Voter caging was a tactic used by the RNC during the 1981 elections, during which the RNC was accused of creating a voter challenge list by mailing sample ballots to individuals in precincts with a high percentage of minority registered voters.
Those voters whose mailings were returned as undeliverable were placed on a list of voters to challenge at the polls.
The RNC then engaged off–duty law enforcement officers to stand at the polls in minority precincts during voting wearing armbands emblazoned with “National Ballot Security Task Force.”
As part of the consent degree, the RNC agreed to the following:
[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.
The RNC also agreed “the RNC, its agents, servants, and employees would be bound by the Decree, ‘whether acting directly or indirectly through other party committees.’”
In Louisiana during the 1986 congressional elections, the RNC allegedly created another voter challenge list by mailing letters to African-American voters and including the names of those whose mail was returned as undeliverable on a list of voters to challenge.
A group of voters who appeared on that list sued the RNC in Louisiana state court.
During discovery, the RNC produced a memo in which its Midwest Political Director stated to its Southern Political Director stating: “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.”
While the DNC was not a party to the Louisiana case, after that memo was produced, the DNC brought a separate action against the RNC for violating the consent decree.
In 1987, the consent decree was modified to define “ballot security activities” as “ballot integrity, ballot security or other efforts to prevent or remedy vote fraud.”
In 1990 the DNC sued the RNC again for violations of the consent decree when it participated in a North Carolina Republican Party NCRP program, during which it mailed out 150,000 postcards to residents of mostly African-American precincts.
The DNC alleged the postcard mailing, which warned that it was a “federal crime” to “knowingly give false information about your name, residence or period of residence to an election official,” was a program to intimidate voters.
The postcards also falsely stated there was a 30-day minimum residency requirement prior to the election.
Although the district court ruled the DNC failed to establish that the RNC conducted, participated in or assisted in the postcard program, it also found the RNC violated the consent decree by its failure to give state parties guidance on unlawful practices under the consent decree or copies of the decree when the RNC gave them ballot security instructional materials.
In 2004, Ebony Malone, an African-American Ohio resident filed an enforcement action against the RNC a week before the presidential election, claiming the RNC violated the consent decree by participating in the compilation of a predominantly minority voter challenge list of 35,000 individuals, including Malone, from Ohio.
It was another letter campaign, which placed those whose letters were returned as undeliverable on a voter challenge list.
Malone sought a preliminary injunction to bar the RNC and any state affiliated organizations from using the list in ballot security efforts.
The RNC argued the Ohio Republican Party was not subject to the decree and could carry out any challenge to Malone’s eligibility to vote.
The district court rejected the RNC’s argument and issued an order barring the RNC from using the list to challenge voter eligibility and to instruct its agents in Ohio not to use the list for ballot security efforts.
The court also found the RNC violated procedural and substantive provisions of the consent decree by participating with the Ohio Republican Party in devising and implementing the ballot security program and failing to obtain preclearance for the program.
After the RNC was denied a request to stay the court’s order, it petitioned for an en banc hearing (to be heard by all the judges of the court rather than just a panel of a few judges).
The Third Circuit Court of Appeals granted the petition for an en banc hearing, vacated the panel’s ruling and stayed the district court’s order.
However, before the court could hear the matter en banc, Malone cast her vote without being challenged.
After Malone voted, Justice Souter, in his capacity as circuit justice for the Third Circuit, denied Malone’s application to the Supreme Court seeking reinstatement of the injunction.
The Third Circuit subsequently dismissed the appeal as moot, without addressing the merits.
In November 2008, the DNC filed another complaint against the RNC for alleged violations of the consent decree when the RNC hired private investigators to look into the backgrounds of some New Mexico voters in order to challenge their eligibility to vote.
The DNC requested a preliminary injunction to keep the RNC from using the information obtained in any ballot security efforts.
The district court denied the DNC’s motion, stating the RNC had not directed or participated in any ballot security measures.
Shortly after the court’s ruling, the RNC filed a motion to vacate or modify the consent decree, in which it stated since the 1987 modification the enactment of the National Voter Registration Act of 1993 (NVRA), also known as the Motor Voter Law, the Bipartisan Campaign Reform Act of 2002 (BCRA), and the Help America Vote Act of 2002 (HAVA) increased the risk of voter fraud and decreased the risk of voter intimidation.
The RNC also asserted the consent decree extended to types of conduct that were not included in the original 1981 complaint and the consent decree violated the First Amendment by restricting communication between the RNC and state parties.
Following an evidentiary hearing and additional briefings in 2009, the district court rejected the RNC’s arguments, which was affirmed in March 2010 by the Third Circuit.
The RNC’s petition for a rehearing en banc was denied in April 2012, while the Supreme Court of the United States also denied the RNC’s application for a writ of certiorari.
So, as the DNC and individuals have filed complaints against the RNC for violations of the consent decree, the DNC is not held to the same standard.
The current consent decree has been reauthorized through 2017. Judge Dickinson R. Debevoise, a U.S. District Court Judge appointed by President Jimmy Carter in 1979, who has been on senior status since May 1994, has presided over all district court proceedings regarding the consent decree beginning with the complaint filed in 1981 through the motion to vacate in 2009.
It appears the only way to level the playing field and challenge voter fraud is by completely dissolving the RNC and starting anew.
