Subject: Re: news of the day 10/27/04
From: "Frank Askin" <faskin@kinoy.rutgers.edu>
Date: 10/27/2004, 2:58 PM
To: Rick.Hasen@lls.edu, election-law@majordomo.lls.edu

In view of the reported Republican efforts to challenge (harass?)  minority voters in a number of jurisdictions, I am sure some will find it of interest that there is an outstanding  consent decree entered against the Republican National Committee in 1987 in the District Court of New Jersey forbidding it from engaging in certain kinds of "ballot security" measures without prior notice to the DNC and the consent of the Court.  The order is nationwide in scope and the Court retained jurisdiction.
   The order recites that : "Whereas the RNC and DNC recognize the importance of encouraging citizens to register and vote and the importance of not hindering or discouraging qualified voters from exercising their right to vote," and "Whereas,  the RNC and DNC recognize the importance of neither using, nor appearing to use, racial or ethnic criteria in connection with ballot integrity, ballot security or other efforts to remedy suspected vote fraud."  
    In its substantive provisions, the Order provides that "To the extent permitted by law and the November 1, 1982 consent order, the RNC may employ persons on election day to perform normal poll watching functions so long as such persons do not use or implement  the results of any ballot security efforts, unless the other ballot security effort complies with the provisions of the Consent Order  and applicable law and has been so determined by this Court."  (In Ohio, as I understand it, Republican poll workers will be provided with information gathered through a ballot security program which involved sending mail to  voters in  minority neighborhoods and gathering undeliverable mail for use on election day.  I doubt that program has been authorized by Judge Debevoise; of course I have no knowledge as to whether it was carried out in cooperation with the RNC, although that seems fairly likely.
   The Consent Order further provides that "Except as provided in Paragraph B, the RNC shall not engage in, and shall not assist or participate in, any ballot security program unless the program (including the method and timing of any challenge resulting from the program) has been determined by the Court to comply with the provisions of the Consent Order and applicable law.  Applications by the RNC for determination of ballot security programs by the Court shall be made following 30 days notice to the DNC which notice shall include a description of the program ro be undertaken, the purpose(s) to be served, and the reasons why the program complies with this Consent Order and applicable law." FRANK 

Prof. Frank Askin
Constitutional Litigation Clinic
Rutgers Law School/Newark
(973) 353-5687