Thirty-five years after it was first imposed, a judge has lifted a consent decree barring the Republican National Committee from pursuing “ballot security” measures.
In their 1981 lawsuit to stop the RNC from engaging in certain practices at the polls, the Democratic National Committee attested that in a New Jersey gubernatorial election, the RNC had sent sample ballots to communities of color, and then had the names for each ballot returned as undeliverable removed from voter rolls. Democrats also alleged that the RNC hired off-duty cops to patrol majority-minority precincts, wearing “National Ballot Security Task Force” armbands. These details were enough to secure a consent decree between the two party organizations and the court in 1982, stopping the GOP from engaging in such voter-intimidation practices.
Except, Democrats alleged, they didn’t stop. The consent decree was updated in 1987 after Republicans created a voter-challenge list of black voters from whom letters had been returned as undeliverable, with an RNC official saying that the list could “keep the black vote down considerably.” The decree was modified again in 1990 after a court ruled the RNC had violated it by not telling state parties about its provisions, which had led to the North Carolina GOP sending 150,000 postcards to potential voters listing voting regulations, in an apparent attempt at intimidation. The GOP violated the court order again in 2004 after yet another voter-challenge list targeted black voters.
With that history of behavior in full view, federal courts moved to allow the decree to expire in December 2017, a decision that was finalized Tuesday by a federal district court. For the first time in three decades, the RNC can pursue ballot-security measures without court preclearance.
The question is whether an unfettered RNC will return to the vote-challenging and poll-watching practices that were repeatedly found to be in violation of the Voting Rights Act. Even during the decades when the Republican National Committee was under court order, schemes like challenging voters with undeliverable mail, known as “voter caging,” have flourished. Similarly, states have pursued initiatives, like voter ID, to address the undocumented specter of widespread voter fraud. Yet, as the University of California, Irvine, School of Law professor Rick Hasen argued in November at Slate, it’s unlikely that the RNC itself will be directly challenging votes in the near future. The RNC had to prove it hadn’t recently violated the consent decree in order to be freed from it, and risks ending up right back under another court order in the future if it should change course.
Additionally, the RNC wouldn’t need to get its hands dirty, even if it wanted to continue vote challenging en masse. State-level GOP organizations have been repeatedly accused of pursuing strategies of voter suppression on their own. In 2016, a North Carolina court stepped in to stop Republican challengers in three counties from using voter caging to cancel thousands of voters in disproportionately black precincts. That year also saw multiple lawsuits filed against Georgia Secretary of State Brian Kemp, a Republican, for the cancellations of over 30,000 voter registrations for minor errors—64 percent of the canceled registrations came from black voters. More recently, as my colleague Brentin Mock reported, during Alabama’s special election for its open Senate seat in December, black voters alleged intimidation by police at the polls.
But with Donald Trump at the head of the national GOP apparatus, it’s too soon to rule anything out. Trump has been a fervent proponent of discredited claims of voter fraud, and of measures purported to counter that fraud. The official mission of his Presidential Advisory Commission on Election Integrity was to “study vulnerabilities in voting systems used for federal elections that could lead to improper voter registrations, improper voting, fraudulent voter registrations, and fraudulent voting”—leaving it ostensibly agnostic about the prevalence of fraud. But even in his statement disbanding the commission last week, Trump declined to adopt that neutral rhetoric, citing “substantial evidence of voter fraud,” and claiming that people who refused to cooperate with measures taken against that fraud had something to hide.
Significant public pressure, over a dozen lawsuits, and pushback from even some Republican officials led to the dissolution of that commission, but it doesn’t seem the president is done with sounding the alarm on voter fraud. Trump’s campaign faced multiple lawsuits over its poll-watching and “ballot security” efforts—including one from Democrats claiming they violated the RNC’s consent decree. Trump has yet to renounce his view that millions of fraudulent voters cost him the popular vote in 2016, which leaves open the prospect that his administration would pursue measures putatively designed to ferret out that fraud, but which in practice suppress minority votes.
The most striking implication of the death of the consent decree, though, may be more legalistic. The expiration date for the current consent decree was set in 2009, and the court by that time had become much more sympathetic to the RNC’s arguments, despite having found it in violation five years before. Even though the RNC had proven unable to find a single instance of voter-registration fraud, the court ruled that the party had a compelling interest in ensuring such fraud did not occur, thus paving the way for full clearance on practices approaching voter caging. The district court did acknowledge, citing the 2008 Supreme Court decision in Crawford v. Marion Cty. Election Bd, that voter intimidation and suppression were several magnitudes more likely to occur than voter fraud, but also rested its analysis on its assessment of the future behavior of the Republican Party, as opposed to its decades-long track record.
The Supreme Court’s 2013 Shelby County v. Holder decision essentially nullified federal preclearance for elections laws, replacing the vigilantly proactive spirit of the 1965 Voting Rights Act with an insistence that the sort of overt racism it guarded against was consigned to the past. The decision to allow the consent decree to expire extends that approach. But if the courts are too optimistic, it will only be clear that the consent decree was still needed after an election goes wrong.
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