In a short unpublished opinion so far garnering only slight media attention, the United States Court of Appeals for the 3rd Circuit decided on Monday what may be one of the most consequential cases poised to affect the 2020 elections. The circuit upheld a district court decision ending a court order in effect since 1982 barring the Republican National Committee from engaging in “ballot security” measures designed to intimidate minority voters from voting at the polls. With Trump having taken over the RNC for the 2020 elections and with this consent decree no longer standing in his way, we should be concerned about a new wave of voter suppression coming from the Republican Party during the upcoming election.
In 1981, the Democratic National Committee sued the RNC over “ballot security” measures allegedly aimed at suppressing minority voters. Here is the district court’s summary of the DNC’s charges:
In connection with the 1981 New Jersey Gubernatorial election, the RNC and the New Jersey Republican State Committee attempted to intimidate the minority voters, in violation of the Voting Rights Act. Specifically, the RNC sent sample ballots to areas where a large portion of the voters were ethnic minorities, then asked that the name of each voter whose sample ballot was returned as undeliverable be removed from New Jersey’s voter rolls. In addition, in an alleged effort of intimidation, the RNC hired off-duty law enforcement officers to patrol polling places in minority precincts. The officers wore armbands that read: “National Ballot Security Task Force,” and some carried two-way radios and firearms.
Instead of fighting the charges, the RNC settled the case in a “consent decree.” This gave the DNC the power to seek contempt charges against the RNC if it appeared to violate an agreement not to engage in certain activities that could intimidate minority voters.
That consent decree was a powerful weapon Democrats used to stop a variety of tactics Republicans had used to make it harder for minority voters to cast their ballots, from “voter caging,” to removing minority voters from voter registration rolls, to intimidating tactics at polling places. Over the years, additional actions by those associated with the RNC led the court to extend it despite resistance from the RNC, which at one point tried unsuccessfully to get the United States Supreme Court involved.
By its own terms, the decree was set to expire in December 2017 unless the Democrats could prove that the RNC was continuing to violate it. Democrats pointed to Trump statements indicating a desire to suppress the vote and to actions of state Republican officials, but they could not tie those to the actions of the RNC.
As Politico reported, limited discovery was allowed to go forward after an apparent election night violation of the decree:
After POLITICO noted [that former] RNC spokesperson Sean Spicer spent the night of Trump’s election on a floor at Trump Tower that many RNC staff believed they were banned from due to the decree, U.S. District Court Judge Michael Vazquez allowed the Democrats to depose Spicer … .
Vazquez nonetheless rejected Democrats’ attempts to depose others, such as former RNC head and Trump chief of staff Reince Priebus, and ultimately held that Democrats did not produce evidence that the RNC continued to engage in bad behavior to justify extending the 35-year-old decree.
In its unpublished decision, the 3rd Circuit unanimously held that Judge Vazquez had wide discretion to decide that the Democrats were not entitled to broader discovery. And given that the Democrats’ argument for extending the decree depended upon finding more smoking gun evidence from that discovery, the court said Vazquez was right to let the decree expire:
The DNC hangs its hat on its challenges to the discovery orders, arguing that if we find that the court abused its discretion on discovery, then we should also find that the Decree could not be ordered expired. However, because the District Court did not abuse its discretion on discovery, it follows that it did not abuse its discretion in ruling that the Decree had expired.
Despite upholding Vazquez’s order, the 3rd Circuit forthrightly and straightforwardly described Donald Trump’s actions during the 2016 campaign as “voter suppression tactics.” It noted that:
At rallies, Trump made statements such as: “[G]o around and watch other polling places,” … “[It’s] so important that you watch other communities, because we don’t want this election stolen from us,” … and “You’ve got to get everybody to go out and watch. … And when I say ‘watch,’ you know what I’m talking about. Right?” … The Trump campaign website contained a form allowing supporters to register as “Trump Election Observers.”
But it said that the district court could reasonably have concluded Trump and his 2016 campaign did this in isolation from the RNC, the only one bound by the decree.
We can only guess what Trump and the RNC, now freed from this consent decree, will have planned for 2020. Trump has irresponsibly used allegations of voter fraud and stolen elections to delegitimize his opposition and rile up his base. During the 2018 election, he made unfounded allegations that Democrats were trying to steal the U.S. Senate seat in Florida from Rick Scott during state-required recounts of ballots in the close election.
Had Trump not taken over the RNC, I would not be so concerned about the demise of the decree. Thirty-five years is a long time, and many of the Republican lawyers I know would bristle at some of the tactics that the RNC had used in the past. But Trump likely has different plans in mind, and it would not surprise me to see Democrats and voting rights activists running back to court in 2020, trying to stop the renewal of odious tactics that should have by now been consigned to the history books.