Decades-Old Consent Decree Lifted Against RNC's 'Ballot Security' Measures
ARI SHAPIRO, HOST:
Eleven months before Election Day, a federal judge has given the Republican National Committee a big win. He has allowed a consent decree to expire that was in place since 1982. That agreement prevented the RNC from carrying out what the party saw as ballot security measures and what critics deemed voter suppression. Rick Hasen of the University of California, Irvine, joins us now. He writes the Election Law Blog. Welcome.
RICK HASEN: Good to be with you.
SHAPIRO: What happened in the early 1980s that led to this consent decree?
HASEN: Well, the Democrats accused the Republican National Committee of engaging in a number of activities which they said was voter suppression in violation of the Voting Rights Act and other civil rights laws. One thing the RNC was accused of was sending armed police officers off duty to polling places to patrol the polling places in minority areas.
Rather than going to trial, the RNC agreed to settle the case, and it settled the case in what's called a consent decree, which means that the settlement between the parties was embodied in a court order. And if the RNC ever violated that order, they could be found in contempt. And so this was a very powerful too that the Democrats have been able to use for the last few decades.
SHAPIRO: And over the years, the Democrats convinced judges to extend this consent decree until now. Why not?
HASEN: Well, so back in the mid-2000s, the RNC went all the way to the Supreme Court trying to get the consent decree eliminated because nobody wants to be under the threat of contempt. But in 2009, a federal judge said, all right, I'm giving it eight more years. Unless the Democrats come forward with evidence that the Republicans are still engaging in this activity, the consent decree will end as of December 1, 2017.
So this summer, as the Trump campaign started touting problems with voter fraud and trying to collect signatures of people who were going to engage in poll watching on Election Day, Democrats said the Republicans were violating the consent decree. The judge determined that whatever the Trump campaign might have done, it was done without the RNC's cooperation, and therefore the RNC didn't violate it, and the consent decree was allowed to die.
SHAPIRO: So what do you expect will change in November when people go to the polls and, for the first time, the RNC is not under this consent decree?
HASEN: If we were not in the Trump administration, I wouldn't expect very much to change. The RNC has been very careful to instruct people associated with it not to engage in any activities that might be seen as suppressing the vote. But Trump adds something different here. He has made voter fraud a centerpiece of his rhetoric about campaigns. He's claimed falsely that 3 to 5 million people voted illegally in the last election, and he's organized people to try to be on the lookout for voter fraud at polling places.
If he tries to use the RNC in this activity, there's now nothing under this consent decree that would stop him. And so I do think to the extent that Trump controls the RNC, we may see more activities aimed at so-called ballot security, which could be seen as suppressing the votes of minority voters.
SHAPIRO: Wouldn't that immediately end up in court and presumably another consent decree?
HASEN: Well, it could end up in court. I certainly wouldn't expect the RNC these days to agree to a consent decree. It might lead to litigation. But you know, this kind of litigation can take years, and the benefit of the consent decree was that the RNC was always under the watch of the DNC and had the ability to bring up a claim of contempt. They don't have that anymore, and so it's a much harder road if it comes to new litigation.
SHAPIRO: Could you argue as the RNC did in a statement today that this just puts the two parties on equal footing?
HASEN: Well, it does put them on equal footing in that neither one is subject to a consent decree. But the difference is that the RNC has a record of having engaged in activities which have been - appear to be aimed at making it harder for minority voters likely to vote for Democrats to be able to vote. And that same danger has not at least in recent years been coming from the Democratic Party. So they might be equal in terms of their legal status, but the dangers are somewhat different for voters.
SHAPIRO: Rick Hasen is an elections law expert at the University of California, Irvine, speaking with us on Skype. Thanks very much.
HASEN: Thank you.
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