Thirty-five years after it was first imposed, a judge has lifted a consent decree barring the Republican National Committee from pursuing “ballot security” measures.
In their 1981 lawsuit to stop the RNC from engaging in certain practices at the polls, the Democratic National Committee attested that in a New Jersey gubernatorial election, the RNC had sent sample ballots to communities of color, and then had the names for each ballot returned as undeliverable removed from voter rolls. Democrats also alleged that the RNC hired off-duty cops to patrol majority-minority precincts, wearing “National Ballot Security Task Force” armbands. These details were enough to secure a consent decree between the two party organizations and the court in 1982, stopping the GOP from engaging in such voter-intimidation practices.
Except, Democrats alleged, they didn’t stop. The consent decree was updated in 1987 after Republicans created a voter-challenge list of black voters from whom letters had been returned as undeliverable, with an RNC official saying that the list could “keep the black vote down considerably.” The decree was modified again in 1990 after a court ruled the RNC had violated it by not telling state parties about its provisions, which had led to the North Carolina GOP sending 150,000 postcards to potential voters listing voting regulations, in an apparent attempt at intimidation. The GOP violated the court order again in 2004 after yet another voter-challenge list targeted black voters.
With that history of behavior in full view, federal courts moved to allow the decree to expire in December 2017, a decision that was finalized Tuesday by a federal district court. For the first time in three decades, the RNC can pursue ballot-security measures without court preclearance.
The question is whether an unfettered RNC will return to the vote-challenging and poll-watching practices that were repeatedly found to be in violation of the Voting Rights Act. Even during the decades when the Republican National Committee was under court order, schemes like challenging voters with undeliverable mail, known as “voter caging,” have flourished. Similarly, states have pursued initiatives, like voter ID, to address the undocumented specter of widespread voter fraud. Yet, as the University of California, Irvine, School of Law professor Rick Hasen argued in November at Slate, it’s unlikely that the RNC itself will be directly challenging votes in the near future. The RNC had to prove it hadn’t recently violated the consent decree in order to be freed from it, and risks ending up right back under another court order in the future if it should change course.