[EL] Donald Trump May Be Violating RNC Consent Decree Aimed at Voter Intimidation

Mon Aug 15 09:24:22 PDT 2016

I think the claim that Trump may be violating the 1982 consent decree raises a number of interesting questions about party structure and power. Some of the questions which occur to me, about which I don't know the answers but they make me very skeptical that Trump is violating the 1982 decree:

Can Trump be an agent of the RNC, when he has not been delegated the power to act as an agent, is not an employee or servant of the RNC, and the RNC no power to instruct him, order or assign duties, or control over him or his campaign, and it has not requested or authorized him to take such steps?

Let's suppose that I really want Donald Trump elected, and fearing massive fraud, I organize a group to challenge voter eligibility at the polls: am I bound by the consent decree? On what basis is it plausible to argue that that makes me an agent of the RNC? Would it differ if I were a candidate for Congress, and did it from concern over my own election? Does being the party's nominee make one an agent of the party? Note that formal party committees have very little control over who becomes their nominees.

Does merely working towards a common goal make people into agents of one another?

Could the judge fine the RNC or hold it in contempt for violating the consent decree, even though the RNC lacks the power to stop Trump? Could he fine the Trump campaign, which was not a party to the suit or the 24 year old consent decree?

I ask these as one highly skeptical of claims of massive voter fraud.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Rick Hasen [rhasen at law.uci.edu]
Sent: Monday, August 15, 2016 10:58 AM
To: Election Law Listserv
Subject: [EL] ELB News and Commentary 8/15/16

Donald Trump May Be Violating RNC Consent Decree Aimed at Voter Intimidation<http://electionlawblog.org/?p=85289>
Posted on August 12, 2016 8:05 pm<http://electionlawblog.org/?p=85289> by Rick Hasen<http://electionlawblog.org/?author=3>

With Trump’s dangerous and irresponsible hyperventilating<http://electionlawblog.org/?p=85282> about voter fraud and cheating in Pennsylvania potentially costing him the election, it is probably no surprise, as reported by theWeekly Standard,<http://www.weeklystandard.com/trump-campaign-seeks-election-observers-to-prevent-rigged-election/article/2003813?custom_click=rss?utm_medium=twitter&utm_source=TWSAutoTweet> that Trump is seeking “election observers<https://www.donaldjtrump.com/lp/volunteer-to-be-a-trump-election-observer>” to stop “Crooked Hillary” from “rigging this election.”

However, there’s a longstanding consent decree that bars the RNC afrom engaging in such activities.  Here’s Tal Kopan and Josh Gerstein, reporting in 2013 <http://www.politico.com/blogs/under-the-radar/2013/01/scotus-wont-disturb-gop-voter-fraud-decree-154135> on the RNC’s unsuccessful attempt to get the Supreme Court to lift the decree:

The Supreme Court on Monday declined the Republican National Committee’s request to lift a three-decade-old court order that limits the national GOP’s ability to challenge voters’ eligibility at the polls.

The case, Republican National Committee vs. Democratic National Committee, dealt with a consent decree issued in 1982 that prevents the RNC from engaging in some voter fraud prevention efforts without prior court consent. It specifically said the RNC could not engage in ballot security efforts (later defined in 1987 as “ballot integrity, ballot security or other efforts to prevent or remedy vote fraud,” according to the U.S. Court of Appeals for the Third Circuit opinion<http://www.ca3.uscourts.gov/opinarch/094615p.pdf>), especially in areas where racial or ethnic makeup could be considered a reason for the activities.

A response to claims of voter intimidation in minority areas in the 1970s and early 1980s, the decree allowed the RNC to continue “normal poll watching” operations while barring activities that could be aimed at voter suppression, though the RNC complained to the courts that the distinction was unclear and difficult to follow. The decree effectively put the national party on the sidelines as concern about voter fraud became more and more pronounced in GOP ranks in recent years and as states passed a series of voter-identification measures.

In deciding the case, which stems from a 2008 lawsuit brought by the DNC, the district court clarified ballot security efforts as “any program aimed at combating voter fraud by preventing potential voters from registering to vote or casting a ballot,” and upheld the consent decree while adding a Dec. 1, 2017, expiration date.

In the consent decree, “The RNC agreed that the RNC, its agents, servants, and employees would be bound by the Decree, ‘whether acting directly or indirectly through other party committees.” Does Trump count as the RNC’s agent in these circumstances?  They are certainly acting in concert, and it is plausible to argue that Trump and the RNC are agents of each other for purposes of this election. Also, the activity Trump is talking about engaging violate the consent decree?  One thing the consent decree says is that they must:

(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…

If this activity violates the consent decree, the DNC can ask for it to be extended for up to another 8 years.
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--
Rick Hasen
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UC Irvine School of Law
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