Watchdog Must Keep an Eye on RNC Activities

(CN) - The Republican National Committee cannot vacate a 1982 settlement that requires court supervision of its voter-fraud-prevention plans, which have come under fire for targeting minorities, the 3rd Circuit ruled.

The RNC had appealed to the Philadelphia-based court after U.S. District Judge Dickinson Debevoise in New Jersey only modified its consent decree with the Democratic National Committee.

A three-judge panel noted that the RNC's angle stems from its desire "not to comply with the consent decree at a critical political juncture - the upcoming election cycle."

"The RNC asks that our court vacate a decree that has as its central purpose preventing the intimidation and suppression of minority voters," Judge Joseph Greenaway wrote for the court. "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.

"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."

The decree was originally put into place after the New Jersey Democratic State Committee alleged in 1981 that the RNC challenged minority voters at the polls. If the voters did not respond to sample ballots they mailed in precincts with a high percentage of racial or ethnic minority registered voters, then the RNC included their names on a list of voters to challenge. "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," the court said. "Some of the officers allegedly wore firearms in a visible manner."

The resulting decree meant "to help ensure that potential minority voters are not dissuaded from going to the polling station to vote, as they might be if the RNC were unfettered by the decree."

But the court had to intervene again in 1987, 1990 and 2004 when the DNC raised similar allegations against Republicans in Louisiana, North Carolina and Ohio, respectively.

The court modified the decree to bar the RNC from engaging in ballot-security activities without District Court preclearance and from using a voter-challenge list to target precincts with large black populations. It also ordered the RNC to provide copies of the decree with any materials it distributes in the future to any state party.

Claiming that these modifications were "substantially tailored to the changed circumstances," the RNC said they violated its right to engage in political speech. It also said the copy-and-distribute order unconstitutionally forces speech.

Opening with the fact that they "do not take lightly Judge Debevoise's nearly three decades of experience presiding over all matters related to this decree," the 3rd Circuit unanimously found that the RNC "has not demonstrated, by a preponderance of the evidence, the circumstances necessary for vacatur or for modifications, other than those ordered by the District Court."

"We find that the District Court did not abuse its discretion in declining to vacate the decree or in making the modifications to the decree that it ordered," Greenaway wrote.

"Modifications allow the RNC to engage in normal poll watch functions on Election Day so long as the people it deploys do not use or implement the results of any ballot security effort without a determination by the District Court that the ballot security effort complies with the provisions of the decree and applicable law," the 59-page decision states.

Greenaway said the RNC knew what it was getting into with the decree.

"The 1982 and 1987 settlement agreements, signed by counsel for the RNC, are clear and compelling evidence that the RNC voluntarily, knowingly, and intelligently waived certain First Amendment rights," he wrote. "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."

Claiming that circumstances have changed, the RNC pointed out that the president and attorney general of the United States, as well as the former president of the RNC, are black. Greenaway said this arguement "hardly requires a serious response."

"Are we to conclude that all issues that affect African-Americans will now get greater funding, greater attention, and more focus because of President Obama?" the decision states. "A handful of minority leaders temporarily occupying leadership positions does not mean the minority voter intimidation or suppression will decrease."

The RNC also pointed out that minority-voter turnout has increased. "Contrary to the RNC's assertions, the increase in minority voter registration and voter turnout since 1982 does not demonstrate that 'minority voters are not being suppressed,'" the judges ruled. "Moreover, the increase in minority voter registration and voter turnout could be evidence that the decree is necessary and effective. ... The RNC's data on minority voter registration and turnout demonstrates that, since the RNC consented to the decree in 1982, minority voter registration and turnout have increased significantly."

Alternative voting mechanisms, such as permanent absentee voting and early voting, are also insufficient developments to vacate the decree. "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," Greenaway wrote. "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. ... 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 failed to show that the Motor Voter Law, Bipartisan Campaign Reform Act and Help America Vote Act actually increased the risk of voter fraud.

"Even if the RNC's assertions are true, which has not been established, the RNC has failed to carry its burden of establishing that a significant change in circumstances," Greenaway wrote.

"The District Court did not abuse its discretion when it found that the Motor Voter Law, BCRA, and HAVA have 'not altered [the] calculus' of in-person voter fraud or voter intimidation to an extent that justifies vacating or modifying the decree due to a change in law," he added.

Claims about the successes of the National Voter Registration Act also misfired.

Greenaway later rejected the RNC's invocation of the public interest in preventing voter fraud, and their claims that "there is little need to prevent the intimidation and suppression of minority voters."

Though the decree simply requires the RNC to preclear its voter-fraud-prevention programs, "the RNC has never submitted any voter fraud prevention program for preclearance," he wrote.

"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 decision states.

"Although a considerable number of years have passed since the RNC and DNC agreed to the decree in 1982 and 1987, the parties entered the decree voluntarily and for over a quarter of a century neither party objected to the duration of the decree," Greenaway wrote. "The District Court did not abuse its discretion by declining to vacate the decree due to the length of time since its entry."

"Any hardship to the RNC is not a product of the terms of the decree," he added. "Clarity allows the RNC to engage in normal poll watching activities while still maintaining adherence to fulfillment of the decree's purpose."

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Watchdog Must Keep an Eye on RNC Activities

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