The Difference Between Illegal Voter Intimidation and Permissible Election Observation Under RNC Decree

I’ve argued that if Trump is an agent of the RNC, his new plans to stop “election rigging” could run afoul of a consent decree aimed at stopping the RNC from such activities. But all agree that parties and candidates can run legal election observation activities.  So what’s the difference between permissible and impermissible?  The district court in one of the RNC v. DNC skirmishes defined the difference as follows (from 671 F. Supp. 2d at 622):

 

(3) “Ballot Security,” as used in the Consent Decree, shall include any program aimed at combating voter fraud by preventing potential voters from registering to vote or casting a ballot. Such programs include, but are not limited to, the compilation of voter challenge lists by use of mailings or reviewing databases maintained by state agencies such as motor vehicle records, social security records, change of address forms, and voter lists assembled pursuant to the HAVA; the use of challengers to confront potential voters and verify their eligibility at the polls on either Election Day or a day on which they may take advantage of state early voting procedures; the recording by photographic or other means of voter likenesses or vehicles at any polling place; and the distribution of literature informing individuals at or near a polling place that voter fraud is a crime or detailing the penalties under any state or federal statute for impermissibly casting a ballot.
(4) “Normal poll-watch function” shall include stationing individuals at polling stations to observe the voting process and report irregularities unrelated to voter fraud to duly-appointed state officials. Such observers may report any disturbance that they reasonably believe might deter eligible voters from casting their ballots, including malfunctioning voting machines, long lines, or understaffing at polling places. Such observers may not question voters about their credentials; impede or delay voters by asking for identification, *623videotape, photograph, or otherwise make visual records of voters or their vehicles; or issue literature outlining the fact that voter fraud is a crime or detailing the penalties under any state or federal statute for impermissibly casting a ballot.
 Trump is arguably setting up to do the former, not the latter.  More soon.
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