Donald Trump’s calls for vigilante poll watchers prompts all sorts of concerns — for voters, for election workers and for other lawmakers on the ballot getting dragged into the mess. But for the Republican National Committee in particular the rhetoric brings up a very delicate but significant issue that has its roots in a 1981 court case that has had lasting implications for its Election Day activities.
Trump’s comments urging elections monitoring has drawn attention to the consent decree the RNC signed in 1982 that banned the very sort of “ballot security” measures Trump has encouraged from his supporters. If there’s reason to believe the RNC was participating, it could be found in violation of the decree, which could keep the committee under its restrictions for another eight years. That would be a major set back for the RNC, given the decree is set to expire in 2017.
To get a sense of how serious the RNC is taking the issue, look no further than the alarm bells that went off with a casual comment made by Trump’s campaign manager in the debate spin room Wednesday night in Las Vegas.
The court decree in question stems from a 1981 lawsuit filed against the RNC by Democrats, for actions related to a gubernatorial race in New Jersey. According to the Dems’ lawsuit, the RNC and its state counterpart engaged in a number of practices in the name of “ballot security” that intimidated, threatened or coerced minority voters. The alleged activities included the hiring of off-duty cops to patrol near polling places in minority communities, as well as a shady mailer campaign the RNC used to cobble together a list to challenge otherwise eligible voters from casting ballots at polling places. The case was settled with the consent decree, imposing a number of limits on what the RNC could do at polling places on Election Day.
Fast forward to 2016, and the thin tightrope Trump’s rhetoric is making the RNC walk now.
During MSNBC’s post-debate coverage that spanned into the early hours of the Thursday morning, Washington Post reporter Bob Costa remarked on something Trump campaign manager Kellyanne Conway told him in the spin room about how the campaign was doing to crack down on “voter fraud.”
“She said that she is actively working with the national committee, the official party, and campaign lawyers to monitor precincts around the country,” Costa said, in a discussion about how Republicans were handling Trump’s rigged election claims.
While it was easy to see the contemporary ramifications of Conway tying Trump’s rigged election claims to the official party apparatus, Ben Ginsberg — the staid Republican lawyer who was also on the MSNBC panel — jumped in to bring up the decades-old decree.
“That’s a huge problem for the Republican Party,” Ginsberg said. “The Republican National Committee is under a consent decree that severely limits its election day activities because of some actions back in the ‘80s.”
Ginsberg, who has worked for the RNC and other Republican groups, as well as for a number of GOP campaigns, including George W. Bush’s during the 2000 recount and Mitt Romney’s in 2012, was later asked to elaborate on why the decree was such a big deal.
“The RNC is still under a consent decree, they are eager to have it come off next year when it expires and this activity, I can promise you is going to cause the Democrats go back into court and extend it,” Ginsberg said.
The RNC has since denied to TPM any coordination on Trump’s supposed voter fraud prevention effort.
“The RNC does not work with any campaign at any level on so-called ballot security efforts and will not do so,” Lindsay Walters, a spokeswoman for the RNC, said in a statement to TPM. “We are completely focused on getting out the vote for the Republican ticket.”
Costa told TPM via email that Conway called him back later to tell him she was mistaken about the RNC’s involvement.
The RNC has faced a number of legals complaints from Dems claiming violations of the decree since 1982. A 2008 lawsuit filed by Dems resulted in a court modifying the decree, but when the RNC appealed to the Supreme Court to get it lifted in its entirely, the court in 2013 declined to take the case.
There has been some debate as to whether Trump’s actions already were enough to get the RNC in trouble, if he was interpreted to be an agent of the RNC or acting on its behalf, as Rick Hasen, a professor at the UC-Irvine School of Law, has posited on his Election Law Blog.
But the RNC as well as a Republican lawyer who is knowledgeable about the consent decree pushed back on the notion that Trump’s action could be imputed to the RNC. They said that the consent decree makes clear that it applies to the RNC specifically and not to any candidate or independent campaign. (The New Jersey Republican State Committee was also explicitly covered in the original decree.)
Nevertheless, it appears the committee is taking any association very seriously, and making efforts to prevent its staff and members from doing anything that would give the appearance the RNC was involved.
According the Wall Street Journal, RNC general counsel John Ryder wrote to committee members Wednesday asking them to avoid engaging in poll watching.
“You are encouraged not to engage in ‘ballot security’ activities even in your personal, state party or campaign capacity. If you elect to do so, please be aware that the RNC in no way sanctions your activity,” the letter said.