Back in August, I blogged about how Donald Trump could be violating a longstanding consent decree against the RNC engaging in “ballot security” measures which have been found to intimidate minority voters. I explained how the consent decree began in the 1980s, was extended by the courts over RNC’s objection (which went all the way to the Supreme Court in an unsuccessful effort to get them involved), and now expires in 2017 unless extended for up to another 8 years by order of the Court. I explained that there were two issues: first, was Trump engaging in voter intimidation activities (it looked like he had) and second, whether Trump could be seen as an “agent” of the RNC (because the decree applies only to the RNC, its employees, and agents).
Last week I wrote, in response from the RNC trying to distance itself from Trump’s activities, “I think it is already too late for the RNC, and I’m sure Democrats are collecting the evidence they need to in order to go back into court to extend this another 8 years.”
Well now it’s happened.
The DNC filed papers saying that the RNC, through Trump’s actions has already violated the consent decree, and asks for another 8-year extension. From the papers:
Defendant Republican National Committee (“RNC”) has violated the Final Consent Decree entered in Democratic Nat’l Comm. v. Republican Nat’l Comm., No. 81-cv-3876 (DRD) (Nov. 1, 1982) (“1982 Consent Decree”), as modified by order of this Court on July 27, 1987 (“1987 Consent Decree”), and again on December 1, 2009 (“2009 Consent Decree”) (collectively the “Consent Decree” or “Decree”), by supporting and enabling the efforts of the Republican candidate for President, Donald J. Trump, as well as his campaign and advisors, to intimidate and discourage minority voters from voting in the 2016 Presidential Election. Trump has falsely and repeatedly told his supporters that the November 8 election will be “rigged” based upon fabricated claims of voter fraud in “certain areas” or “certain sections” of key states. Unsurprisingly, those “certain areas” are exclusively communities in which large minority voting populations reside. Notwithstanding that no evidence of such fraud actually exists, Trump has encouraged his supporters to do whatever it takes to stop it—“You’ve got to get everybody to go out and watch . . . and when [I] say ‘watch,’ you know what I’m talking about, right?”—and has been actively organizing “election observers” to monitor polling stations in “certain areas.” Trump has even encouraged his “watchers” to act like vigilante law enforcement officers.
Although certain RNC officials have attempted to distance themselves from some of the Trump campaign’s more recent statements, there is now ample evidence that Trump has enjoyed the direct and tacit support of the RNC in its “ballot security” endeavors, including the RNC’s collaboration on efforts to prevent this supposed “rigging” and “voter fraud.” In a rally in Denver, Colorado, on August 3, 2016, Trump’s vice presidential running mate, Indiana Governor Mike Pence, admitted that the RNC was directly coordinating with the Trump campaign on “ballot integrity” initiatives, stating that “the Trump campaign and the Republican National Committee are working very very closely with state governments and secretaries of states all over the country to ensure ballot integrity.” 8-3 Replay: Pence Denver Rally Town Hall, TrumpTube.tv, http://trumptube.tv/donald-trump-rally-speech-video/video/pence-live-stream-town-hall-8-3-16/, at 16:22-37 (last accessed Oct. 26, 2016). Following the third presidential debate, Trump’s campaign manager told a reporter that the campaign was working to combat purported voter fraud by “actively working with the national committee, the official party, and campaign lawyers to monitor precincts around the country.” These efforts are directly funded by the RNC through its joint fundraising committee established “to elect Republicans up and down the ballot,” see Certification of Angelo J. Genova, Esq. (hereinafter “Genova Cert.”) at Ex. 1 (RNC & Trump Campaign Announce Agreements, GOP.com, May 17, 2016), and specifically to fund the Trump campaign, see Genova Cert. at Ex. 2 (Statement of Organization, Trump Make America Great Again Committee, FEC-1074541, May 25, 2016). The RNC’s support of Trump’s efforts to recruit “watchers” who are intended to intimidate voters at their polling places violates this Court’s Consent Decree as modified in 2009, which explicitly forbid the RNC from engaging in so-called “ballot security” measures directly, indirectly, or through its agents or employees. See Genova Cert. at Ex. 20 & 22 (1982 and 2009 Consent Decrees) The RNC’s conduct also violates the Consent Decree under well settled law prohibiting defendants from evading court orders by acting in concert with third parties. See, e.g., Roe v. Operation Rescue, 919 F.2d 857, 871 (3d Cir. 1990) (“The law does not permit the instigator of contemptuous conduct to absolve himself of contempt liability by leaving the physical performance of the forbidden conduct to others.”).
Accordingly, Plaintiff Democratic National Committee (“DNC”) respectfully moves for an order directing Defendant RNC to show cause why the RNC should not be held in civil contempt for violating the Consent Decree entered in this action, as modified, and why sanctions should not issue as a result of those violations.
Plaintiff also respectfully requests expedited treatment of this matter. The election will take place in less than two weeks, and early voting is already underway in many states—including New Jersey, where early voting began on September 24. Meanwhile, Defendants’ ongoing violation of this Court’s Consent Decree will continue unabated until this Court acts.
I think this matter of the extension will get very serious consideration by the courts, including potentially the Supreme Court. It will also cause the RNC to do what it can to try to further distance itself from Trump’s election day activities.