by Prof. Lisa Manheim
Just two days ago, this election cycle gave birth to (yet another) lawsuit. It’s an important one. And like so much in election law, it requires a dive into history.
In 1981, Republican organizations enlisted the help of supporters, including off-duty police officers, to patrol urban areas in New Jersey. The purpose of these efforts, according to critics, was to intimidate prospective voters. Members of the so-called “National Ballot Security Task Force” wore official-looking armbands, posted large “WARNING” signs directed at voters (which included the language I’ve used as the subject header for this post), and in some cases openly displayed firearms. Their activities prompted a lawsuit. To settle the claims, the Republican National Committee (RNC) entered into a consent decree (still in effect) whereby it agreed to, among other things, refrain from “undertaking any ballot security activities . . . where the racial or ethnic composition of such districts is a factor in the decision to conduct . . . such activities . . . and where a purpose or significant effect of such activities is to deter qualified voters from voting.”
After the 1986 elections in Louisiana, Republicans facilitated another voter-challenge program. As revealed in discovery, one Republican director predicted that the effort would “eliminate at least 60,000–80,000 folks from the rolls” and “[i]f it’s a close race . . . this could keep the black vote down considerably.” This led to a modification of the consent decree, which included the addition of a preclearance provision. More specifically, the decree was altered to prohibit the RNC from engaging in any “ballot security activities” unless it first received permission from a court. “Ballot security activities” were defined to include “any program aimed at combating voter fraud by preventing potential voters from . . . casting a ballot.”
In 1990, the court found that the RNC had violated the consent decree by In 1990, the court found that the RNC had violated the consent decree (based on a failure adequately to educate state parties, in matters related to alleged attempts to intimidate voters in North Carolina). In 2009, the court again modified the consent decree. Among the 2009 changes was an expiration date: absent any further violation, the decree would terminate on December 1, 2017. All of which brings us to today..... KEEP READING