Breaking: District Court in DNC v. RNC Case Denies Injunction, Contempt, and Extension of Voter Intimidation Decree, For Now

A 36-page opinion by the court is here.

The court’s order denying all requested relief is here. The key portion of the order is its sole footnote:

The Court is not limiting post-election discovery requests to the events described in Nevada. The Court is aware that the reason that the evidence is so limited is due to the time constraints that the parties were operating under due to the approaching Election Day and, as a result, the limited discovery that could reasonably be provided in such a short period. Although the Court is denying Plaintiff’s current motion for injunctive relief, for a contempt finding, and for sanctions, nothing in the Court’s opinion prohibits Plaintiff from making similar motions in the future if, in its view, it believes that such motions are warranted in light of additional facts discovered during post-election discovery.

The judge is essentially saying that based on the record the Democrats put forward on a very truncated schedule, there was not enough evidence that the RNC or its agents (including potentially the Trump campaign, perhaps treated as the RNC’s agent) violated the longstanding order preventing the RNC from engaging in “ballot security” measures looking for “voter fraud” which can intimidate minority and other voters.

However, the judge recognizes that with the short timeframe there was not adequate time to develop the evidence, and that nothing in the denial today says anything about how the court would view the issue in post-election filings.

The opinion seems to take a narrow view of the “agency” question, saying the issue is not just whether the Trump campaign and the RNC were working together (they clearly are) but whether they are working together on ballot security (not enough evidence of that).  I think this finding could be vulnerable should the Democrats choose to appeal, either now or later.

In the end, on the evidence presented thus far, the court found the Democrats did not have enough evidence the RNC was engaged in prohibited activity:

Yet, in the Court’s view, the injunctive relief sought turns on the first element, that is, the DNC’s likelihood of success on the merits. For the reasons stated above, in light of the evidence currently in the record, the Court finds that the DNC has not demonstrated a likelihood of success concerning action taken by the RNC in light of the statements by Mr. Priebus, Governor Pence, Ms. Conway, Ms. Romney McDaniel, or Mr. Gleason. The poll watching activity in Nevada is not as clear. However, assuming that the DNC has shown a probability that it will succeed in demonstrating that the RNC is engaged in poll watching, the DNC has not done the same concerning whether such activity is related to voter fraud or ballot security, which is what the Decree prohibits. As noted, normal poll-watch functions are expressly permitted under the Consent Decree, so proving this fact alone would not entitle the DNC to relief. The Court is sensitive to the DNC’s position that such activity is suspicious in light of the RNC’s position that it is not engaging in any poll watching, but the Court’s only focus is whether the Decree itself is being violated.

At best, the DNC shows a possibility, not a probability, that the poll observers’ activities were related to voter fraud. The strongest evidence concerns the statements of O.P., who allegedly gave potential voters materially wrong information on four occasions. Even this evidence, however, turns on O.P.’s intent when she provided the erroneous advice – did she do so intentionally or was she unintentionally mistaken? More importantly, even if O.P.’s statements were intentionally misleading, the Court is unable to infer an overarching program based on the actions of one person. Outside of the O.P. examples, the DNC’s submissions on activities related to potential voter fraud are scant. K.H. reportedly filled out an incident report, but the Court would have to speculate as to whether the report related to alleged voter fraud. Critically, three observers who indicated that they worked for the RNC did not engage in any activities that could be deemed related to ballet security or voter fraud. As a result, the DNC has not demonstrated a probability of success on the critical issue – a program related to voter fraud – and its motion for injunctive relief is denied.

This is, of course, a loss for the DNC, but not really a complete one. Indeed, as I argued in Slate, this suit and the other suits around the country have served as information-forcing devices to get Republicans and the Trump campaign to reveal their plans surrounding “ballot security,” and to get assurances that the campaigns are taking steps to prevent voter intimidation on election day. Further, these courts are now open for business should there be problems on election day, and the potential for further court action remains, including for lawyers and professions on the Republican side who gave court assurances about what is planned for election day.

And in the meantime, there is still the order against the Trump campaign and others in Ohio, which is now the subject of a Sixth Circuit appeal.  I see some issues of due process, vagueness and overbreadth in that order and expect there will at least be a modification of it, if not an outright reversal.

[This post has been updated.]

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