Take it from the leaked words of top Trump campaign advisor.
The end of a court decree that barred so-called “ballot security” activity by certain Republicans is a big deal for President Trump’s re-election efforts.
An audio tape of Trump campaign official Justin Clark describing Election Day plans for 2020 made headlines last month for Clark’s reference to the “suppressing” of votes Republicans have “traditionally” done.
Clark has since claimed he said “suppressing” while making air quotes, and that he was referring to accusations of Republican voter suppression, which he said were false.
But just as concerning to voting rights experts, as well as to Democrats, was how he described the effect of the decades-old consent decree being lifted. The Republican National Committee entered into the consent after being sued for targeting minority voters with discriminatory tactics in the name of “ballot security.”
In private remarks recorded in Wisconsin last November, Clark explained “what is going to be different about Election Day operations in 2020 versus 2016.”
“First and foremost the consent decree is gone,” he said.
Clark went on to discuss the financial and institutional benefits of having the Republican National Committee take the lead on poll watching and other Election Day operations. He also raised President Trump’s own well known obsession with voter fraud. Trump has embraced false claims that millions of noncitizens voted illegally in 2016 — claims that have been used to push restrictive policies.
Marc Elias, a Democratic election law attorney, told TPM that the decree being lifted will be “enormously consequential, because this will be the first presidential cycle in which the RNC will be able to directly coordinate these poll monitoring and [ballot] challenge programs.”
“And it is a sad commentary that the Trump campaign views the ability to prevent people from voting as an important accomplishment for the 2020 cycle,” Elias said.
Rick Hasen, an election law expert and professor at the University of California, Irvine School of Law, pointed to Trump’s calls for poll watchers in 2016 — an effort the RNC distanced itself from due to the decree.
“Now that the consent decree is gone, and Trump has taken over the RNC as well as many state activities, I am very concerned they’re going to up their activities here, in an effort to prevent minorities from voting,” Hasen told TPM. “The tape is just further confirmation that that is a risk.”
The RNC told TPM that Democrats were only worried about the dissolution of the consent decree because it had given them an advantage over the GOP in the last 30-plus years of elections.
“Now the RNC can work more closely with state parties and campaigns to do what we do best, ensure that more people vote through our unmatched field program,” RNC Communications Director Michael Ahrens said in a statement to TPM. “An Obama-appointed judge ended the decades-old consent decree over baseless accusations from Democrats, and it means we can now play by the same rules as they can.”
The ‘Shenanigans’ That Led To The Decree
The decree was the result of a lawsuit the Democrats brought against the RNC and the New Jersey GOP, for what Clark himself described as “shenanigans” on the leaked tape.
The lawsuit alleged that Republicans hired off duty cops during a 1981 gubernatorial election to patrol minority neighborhoods in New Jersey while touting “National Ballot Security Task Force” armbands and posters. Republicans were also accused of sending minority voters sample ballots using an outdated registration list; if the ballots were returned undeliverable, they then challenged those individuals’ right to vote.
The practice, also known as “caging,” aims to have those voters removed from the rolls. According to the lawsuit, even after election officials informed the GOP that it was using an outdated voter roll to create the challenge lists, Republicans deployed workers to polling places in those targeted neighborhoods to allegedly harass poll workers and those who showed up to cast ballots.
To resolve the lawsuit, Republicans entered into the 1982 consent decree, which prohibited the national GOP and the New Jersey GOP from engaging in certain “ballot security” programs without first getting permission from the judge.
The decree was revised multiple times, including when Republicans were twice more accused of targeting minority voters with challenge lists. But it was finally set to expire in 2017.
Then-candidate Trump’s calls for vigilante poll watchers, as well as comments by his campaign officials claiming that they were coordinating with the RNC to prevent voter fraud, spurred another flurry of litigation in the final days of the 2016 election. However Democrats were unable to convince U.S. District John Michael Vazguez — who took over the case after the original presiding judge died in 2015 — to extend the decree. It was lifted in Jan. 2018.
Even before the tape emerged, Democrats and voting rights groups were bracing for the return of intimidating polling place tactics in 2020; Fox News reported in April on the RNC’s plans to go on the “offensive,” which is similar to how Clark described on the leaked tape Republicans’ post-decree plans.
‘It’s a Huge, Huge Deal’
At some points on the leaked tape, which was posted by the Democratic-aligned group American Bridge and first reported on by the Associated Press, it’s unclear whether the plans Clark described are directly linked to the the decree’s dissolution or just the result of a broader strategy shift. He said, specifically, however, that the decree had forced campaigns to cover the cost of poll watching activities, rather than the committee, and stressed the benefit of “institutional knowledge” gained “cycle to cycle” if the national entity was doing the coordination.
“It’s a huge, huge deal,” Clark said, as he brought up the hiring for Election Day operations that the Trump campaign was doing, all as a “result of us being able to budget and coordinate directly with the RNC.”
He later pivoted towards Trump’s “concern” about voter fraud.
“Every time we’re in with him, he asks, what are we doing about voter fraud,” Clark said, “which is great for guys looking for budget approval.”
He said that the campaign will be focusing on Democratic-controlled localities that broke for Trump in 2016, where Clark claimed Democratic “cheating happens.”
“Their cheating doesn’t just happen when you lose a county. Their cheating happens at the margin overall,” Clark said, while suggesting a county Trump won by 14,000 votes could have been won with 17,000 votes.
The campaign did not respond to TPM’s specific questions about how to interpret these remarks, but it provided a statement from Clark that said, “Neither I nor anyone I know or work with would condone anyone’s vote being threatened or diluted, which is what our efforts will be focused on.”
The RNC, meanwhile, highlighted polling place operations such as making sure election officials were complying with the law and managing the accounting processes once polls closed. Poll watchers may also be able to keep an eye on who is voted, and can use that information to help campaigns turn out supporters who haven’t voted yet.
Even those concerned by Clark’s remarks conceded that there are legitimate Election Day activities that the RNC perhaps avoided conducting in the past due to the decree. And Clark also alluded to those legitimate activities in his leaked remarks.
“It is absolutely part of the process for lawyers or other volunteers to observe the process of voting, help voters where they can,” said Hannah Fried, the national campaign director of the voting rights group All Voting Is Local.
But while groups like hers also care about fair and secure elections, Fried said, “There isn’t anything fair about targeting voters of color.”
“Conducting that kind of [ballot security] activity only in communities of color is not fair,” she said.
No Longer Is There ‘This Thing to Hold Over the RNC’s Head’
When the consent decree was in place, any inkling that the RNC was back up its old tricks could be addressed quickly by Democrats, because a case and judge was already in place to deal with such allegations and Democrats needed only to prove that the RNC had violated the 1982 order.
Now, if any behavior occurs that appears to be suppressing the vote, Democrats or voting rights advocates will have to file a new lawsuit under a legal theory that covers the alleged activity, and do additional fact-finding, if necessary.
It’s the “difference between having this thing to hold over the RNC’s head and not having it,” Hasen said.
While the decree was gone for the 2018 midterms, a presidential election poses a bigger risk, Elias said, because turnout is greater and the RNC plays such a large role in presidential campaigns.
The point of ballot challenges, according to Elias, is not just to intimidate individual voters but to create chaos and long lines at polling places that discourage others from voting.
Under the consent decree, for the RNC to conduct such programs and ones like them required notifying the court and Democrats. Without it, voting rights proponents are stuck reading the tea leaves, as Max Feldman, counsel for the Brennan Center’s Voting Rights & Elections Program, put it.
“Now we’re left in a situation where we don’t have that comfort any more and we’re trying to parse out what one individual is suggesting may or may not happen 2020,” Feldman said.