« Levine on the "Hands-Off Approach to Religious Doctrine" | Main | Yes, You Can Change Your Vote (in some places); But It's a Bad Idea »

Friday, October 28, 2016


Just two days ago, this election cycle gave birth to (yet another) lawsuit. It’s an important one. And like so much in election law, it requires a dive into history.

In 1981, Republican organizations enlisted the help of supporters, including off-duty police officers, to patrol urban areas in New Jersey. The purpose of these efforts, according to critics, was to intimidate prospective voters. Members of the so-called “National Ballot Security Task Force” wore official-looking armbands, posted large “WARNING” signs directed at voters (which included the language I’ve used as the subject header for this post), and in some cases openly displayed firearms. Their activities prompted a lawsuit. To settle the claims, the Republican National Committee (RNC) entered into a consent decree (still in effect) whereby it agreed to, among other things, refrain from “undertaking any ballot security activities . . . where the racial or ethnic composition of such districts is a factor in the decision to conduct . . . such activities . . . and where a purpose or significant effect of such activities is to deter qualified voters from voting.”

After the 1986 elections in Louisiana, Republicans facilitated another voter-challenge program. As revealed in discovery, one Republican director predicted that the effort would “eliminate at least 60,000–80,000 folks from the rolls” and “[i]f it’s a close race . . . this could keep the black vote down considerably.” This led to a modification of the consent decree, which included the addition of a preclearance provision. More specifically, the decree was altered to prohibit the RNC from engaging in any “ballot security activities” unless it first received permission from a court. “Ballot security activities” were defined to include “any program aimed at combating voter fraud by preventing potential voters from . . . casting a ballot.”

In 1990, the court found that the RNC had violated the consent decree (based on a failure adequately to educate state parties, in matters related to alleged attempts to intimidate voters in North Carolina). In 2009, the court again modified the consent decree. Among the 2009 changes was an expiration date: absent any further violation, the decree would terminate on December 1, 2017. All of which brings us to today.

Donald Trump has been imploring his supporters to patrol urban areas. (“Watch Philadelphia. Watch St. Louis. Watch Chicago, watch Chicago. Watch so many other places.”) He’s been asking them to engage in this work in order to (to use the phrasing of the consent decree) “combat[] voter fraud by preventing potential voters from . . . casting a ballot.” (“So important that you watch other communities, because we don't want this election stolen from us.”) To take one (hopefully extreme) anecdote from the Boston Globe, one Trump supporter has described his reaction as follows:

“Trump said to watch your precincts. I’m going to go, for sure . . . . I’ll look for . . . well, it’s called racial profiling. Mexicans. Syrians. People who can’t speak American . . . .  I’m going to go right up behind them. I’ll do everything legally. I want to see if they are accountable. I’m not going to do anything illegal. I’m going to make them a little bit nervous.”

In response, the RNC is back in court, with the Democratic National Committee (DNC) accusing it of violating the consent decree. As a result of this alleged violation, the DNC argues, the RNC should be held in contempt; the court should issue relief to ensure enforcement of the decree; and it should extend the decree for another eight years.

I have a few reactions. First, the DNC appears to have a strong claim here. Of course, one expects such a reaction after having only read the briefing from one party. (I have not yet located a responsive filing by the RNC.) The biggest obstacle for the DNC may be convincing the court that the activities of individuals (such as Donald Trump and his supporters) can be attributed to the RNC. Yet the DNC’s filing already chronicles evidence in support of such an argument, and in the 1990 litigation discussed above, a District Court concluded that the RNC had violated the decree not through its own voter-directed activities, but rather by failing to provide adequate guidance to local parties about the prohibitions. (This 1990 precedent may help to explain why the RNC emailed its members last week insisting that “[a]dherence to the Consent Decree is of the utmost importance” and that anyone engaging in “‘ballot security’ activities” would be doing so “not [as] an agent of the RNC.”) This all leads to the second observation, which is that one legal response by the RNC might be to argue that Donald Trump is not sufficiently representative of the RNC to constitute its “agent” for purposes of the decree. That legal strategy may or may not have potential (it depends on, among other things, how the RNC articulates this argument and how much proof the party can produce), but recent efforts to distance itself from its presidential candidate have had troubling political consequences for the party.

Finally, it is interesting that the consent decree includes a preclearance provision. So did Section 5 of the Voting Rights Act, which the Supreme Court (effectively) invalidated in 2013. Preclearance is a profoundly effective mechanism to counteract abusive forms of election administration or activity. This is because while elections keep happening, whether or not litigation is unfolding (and by extension, whether or not that litigation eventually will confirm the existence of illegal or unconstitutional activity), preclearance keeps the status quo in place. It also is effective because it tends to be easier for plaintiffs to prove a failure to receive preclearance than to prove a violation of the relevant substantive standards.

It will be interesting to see how the District Court in New Jersey responds. Will it take the approach of, for example, a recent decision by the Court of Appeals for the Fourth Circuit, which seemed eager to interpret the controlling law in a manner that protects voters against problematic efforts to combat “voter fraud”? Or will it follow an approach more similar to the Supreme Court as of late (at least, prior to the passing of Justice Scalia), which seemingly has been reluctant to interpret the law in a manner that tends to favor such protections? In my view, the history surrounding the consent decree—and the history of voting rights more generally—suggests that the former tends to be the better approach. It is true that, in the words of Chief Justice Roberts, “history did not end in 1965.” But neither did activities that have the very real potential to suppress votes.

Posted by Lisa Manheim on October 28, 2016 at 06:34 PM in Current Affairs, Law and Politics | Permalink


When I was a clerk about twenty years ago, some rejected job candidates filed discrimination claims against their would-be public employer. Twenty years before that, the employer has been the subject of a consent decree that required the employer to follow quite a few, fairly "aggressive" measures designed to increase minority employment.

Someone looking at the candidates afresh would likely have rejected them, which is what the employer did. Indeed, at the time the new case was filed, there was considerable doubt as to whether the original decree terms were even constitutional, as a series of SCOTUS and appellate rulings called them into doubt. As the case progressed, I realized that the employer had simply "forgotten" about the consent decree over time. By the time we had the case, everyone involved in the prior case, including the judge, was gone. There was plenty of time for the bureaucratic needs of the organization to re-assert themselves in the form of abstractly reasonable, yet decree-prohibited employment practices.

I've always wondered about this dynamic, which must happen all the time. 2009 isn't ancient history, but the past seven years have been several lifetimes in politics. Not only is the RNC not what it was, but the Trump campaign is the perfection of a decades-long trend in which presidential candidates have run as their own brand.

Unless they want to devote the rest of their careers to consent decree management - and even if they do - I wonder whether such ongoing monitoring is something we can expect judges to do well. I suppose much of the monitoring is offloaded onto private entities or the DOJ, but even then it will be reactive, as was the case in my one example above. Is there any good research on the long-term judicial administration of consent decrees?


Posted by: Adam Scales | Oct 30, 2016 9:02:31 AM

Only slightly. The issue is less familiarity of that judge as the depth of the case.

Posted by: Howard Wasserman | Oct 29, 2016 2:06:18 PM


Does the fact that this case was assigned to new judge alter your views regarding the court's familiarity with the case? See http://electionlawblog.org/?p=88194

Posted by: Josh Douglas | Oct 29, 2016 11:38:16 AM

To your question of "which approach": I think the fact that this is a motion to enforce an existing decree in an ongoing case, rather than a new lawsuit, matters. This court has been sitting on this case for 35 years, with activity seven years ago. That creates a familiarity with the law, facts, and parties, as well as a greater willingness to hold the defendant's feet to the fire more than in a new lawsuit looking at facts and legal issues for the first time.

Consider it in reverse: It would be harder for the RNC to modify or dissolve this injunction than it would be to avoid the injunction in the first place. The same goes for enforcement.

Posted by: Howard Wasserman | Oct 28, 2016 9:12:53 PM

The comments to this entry are closed.