RNC loses appeal on poll-watching tacticsBy
Has it been 30 years?
During the 1981 New Jersey gubernatorial race, the Democratic National Committee and the New Jersey Democratic State Committee filed suit against the Republican National Committee and New Jersey Republican State Committee for alleged intimidation of minority voters in violation of the Voting Rights Act of 1965, and the Fourteenth and Fifteenth Amendments to the Constitution of the United States. The RNC allegedly created voter caging lists in minority precincts and, allegedly, hired off-duty law enforcement officers to stand outside minority precincts wearing “National Ballot Security Task Force” armbands, some bearing firearms. The settlement the RNC signed with the DNC — applicable nationwide — limited the RNC, its agents’ and employees’ ability to engage in voter fraud prevention efforts without prior court approval. There were successful enforcement actions against the RNC in 1987 in Louisiana and in 1990 in North Carolina. Wikipedia has a list of references to alleged RNC voter suppression actions that never made it to court.
In 2008, the RNC sued to have the 1982 Consent Decree voided, only to lose in New Jersey district court and in the U.S. Court of Appeals. Of course, Hans Von Spakovsky was on their legal team. Gotta say, I never expected a court opinion to be this humorous.
First the headlines:
March 8 (Reuters) – The Republican National Committee on Thursday lost a bid to dissolve a decades-old legal agreement with the Democratic National Committee over the GOP’s use of improper election tactics.
The party argued that the risk of voter fraud had increased, justifying stronger prevention measures. They argued that the political landscape had shifted, with more minority-voter turnout and African Americans serving as president, attorney general and chair of the Republican National Committee. Moreover, the suit claimed the decree violated the Republican Party’s free speech rights.
Those stronger measures would be to prevent the phantasmal voter fraud the RNC has obsessed over for for 30 years. As to free speech, the appeals court held that the RNC knowingly waived some of its rights when its counsel signed settlement agreements in 1982 and 1987, and “may not now seek to withdraw from performing its obligations and from discharging its burdens …” The African Americans in office argument, said the court, “hardly requires a serious response.”
Now on to highlights from the court opinion written by Judge Joseph Greenaway (emphasis mine):
The RNC argues that the NVRA [Motor Voter Law] renders the Decree antiquated because it has led to significant increases in minority voter registration and turnout. The RNC also asserts that the NVRA creates an increased risk of voter fraud. This argument, that the enactment of a law that expands voter registration opportunities renders inequitable a Decree that aims to prevent voter intimidation and suppression, is unpersuasive. The District Court correctly notes that any increase in minority voter registration or voter turnout caused by the Motor Voter Law is irrelevant to the Decree because “the Consent Decree was not designed to encourage minority voter registration, but rather to prevent voter suppression.”
The RNC argues that the BCRA’s [Bipartisan Campaign Reform Act of 2002, McCain–Feingold Act] prohibition on the spending of soft money by state parties for voter registration and get-out-the-vote activity has heightened the risk of voter fraud because it is difficult to track the voter registration efforts of the increased number of groups registering voters. As the District Court mentions, the Decree does not prevent the RNC from collaborating with non-party organizations to register voters and the RNC has not demonstrated that any ineligible voter registered by a non-party organization has ever actually cast a vote.
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.
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 …
… and just in time in time for “the upcoming election cycle,” the court noted earlier. Reuters concludes:
Election law professor Richard Hasen at University of California, Irvine described the ruling as a “huge win” for the Democratic Party. He said the Republican National Committee could file an emergency appeal to Supreme Court Justice Samuel Alito, who oversees the 3rd Circuit. Alternately, the committee could seek review by the full 3rd Circuit.
So stay tuned. If the RNC doesn’t get to bring back off-duty police with sidearms, at least they’ll have all those shiny new photo ID laws.
(UPDATED to clarify where this week’s ruling took place.)