Is It True That the RNC Can't Challenge Voter Fraud?

It's been over two weeks since the 2012 election, yet conspiracy theories still abound regarding the election's outcome, and what could have been done to avoid it. Naturally enough, arguments also exist that the election's outcome was incorrect, and therefore it should be reversed or recounted. These, as we have already written, are mostly factually incorrect and will not be successful.

However, there is one argument currently making the rounds of the internet that has been consistently pushed by many conservatives worried about the potential future ability of the Republican National Committee to stop Democrats from engaging in voter fraud. This argument suggests that due to a thirty year old legal agreement between the Democratic National Committee and the Republican National Committee, the RNC is legally barred from stopping voter fraud altogether:

The Republican Party made an agreement 30 years ago with the Democrat Party NOT to ensure voting integrity and NOT to pursue suspected vote fraud.

Yes. You read it correctly.

In fact, legally the GOP cannot ensure voting integrity, nor can it prevent vote fraud.[...]

In 1981, during the gubernatorial election in New Jersey (NJ), a lawsuit was brought against the RNC, the NJ Republican State Committee (RSC), and three individuals (John A. Kelly, Ronald Kaufman, and Alex Hurtado), accusing them of violating the Voting Rights Act of 1965 (VRA), 42 U.S.C. §§ 1971, 1973, and the Fourteenth and Fifteenth Amendments to the Constitution of the United States.[...]

To settle the lawsuit, in 1982, the RNC and RSC entered into an agreement or Consent Decree, which is national in scope, limiting the RNC’s ability to engage or assist in voter fraud prevention unless the RNC obtains the court’s approval in advance.

From here, the argument goes straight to the 1981 Consent Decree itself, which does include some provisions which conservatives and Republicans could justifiably be alarmed over. It specifically requires that the RNC:

(a) comply with all applicable state and federal laws protecting the rights of duly qualified citizens to vote for the candidate(s) of their choice;

(b) in the event that they produce or place any signs which are part of ballot security activities, cause said signs to disclose that they are authorized or sponsored by the party committees and any other committees participating with the party committees;

(c) refrain from giving any directions to or permitting their agents or employees to remove or deface any lawfully printed and placed campaign materials or signs;

(d) refrain from giving any directions to or permitting their employees to campaign within restricted polling areas or to interrogate prospective voters as to their qualifications to vote prior to their entry to a polling place;

(e) refrain from undertaking any ballot security activities in polling places or election districts where the racial or ethnic composition of such districts is a factor in the decision to conduct, or the actual conduct of, such activities there and where a purpose or significant effect of such activities is to deter qualified voters from voting; and the conduct of such activities disproportionately in or directed towarddistricts that have a substantial proportion of racial or ethnic populations shall be considered relevant evidence of the existence of such a factor and purpose;

(f) refrain from having private personnel deputized as law enforcement personnel in connection with ballot security activities.

Obviously, most of this looks very, very bad from a Republican perspective. Indeed, some provisions (such as provision d) read as an outright order to ignore potential voter fraud entirely. And indeed, those provisions would be problematic, if the consent decree story stopped with the original document, or if, as one site puts it, this decision were "kept from the American people."

In point of fact, neither statement is the case, and while it is quite arguably a good thing that this story came to light because of the imprecise and vague nature of the decree itself, it is hardly a smoking gun suggesting that one party has carte blanche to commit voter fraud.

Start with the context of the consent decree itself. In 1981, the RNC engaged in a process known as "Voter Caging," which is dubiously legal and highly controversial, but still a method that some officials and partisans use to clean up voter rolls. The way voter caging works is that some entity (say, the RNC) will send mail to particular addresses throughout a state. If the mail is returned as "undeliverable," the RNC (or whoever) would then challenge the person living at that address as an invalid voter, because their given address doesn't actually work, and therefore is presumably not their legal address. This process is controversial (the liberal Brennan Center calls it "notoriously unreliable" because of flaws in the postal system), and is considered illegal if used primarily on minority voters due to the potential for discrimination.

That allegation - of racism - is precisely what led to the original Consent Decree, which was enforced after the DNC alleged that the RNC was specifically using voter caging to purge minority voters from the rolls in New Jersey. Hence, the most important provision of the Decree (and the one that is being litigated to this day) was the requirement that the RNC...

(e) refrain from undertaking any ballot security activities in polling places or election districts where the racial or ethnic composition of such districts is a factor in the decision to conduct, or the actual conduct of, such activities there and where a purpose or significant effect of such activities is to deter qualified voters from voting; and the conduct of such activities disproportionately in or directed towarddistricts that have a substantial proportion of racial or ethnic populations shall be considered relevant evidence of the existence of such a factor and purpose

However, in spite of the restrictive original Consent Decree, attempts by the RNC to stop voter fraud - including caging - do still happen. In fact, Kansas Secretary of State (and former Kansas GOP Chair) Kris Kobach allegedly bragged about doing it as a local GOP official in 2007. If it were true that the RNC or its local affiliates could not try to clean up voter rolls or stop fraud at all, Kobach's boast presumably would have been the subject of a court challenge, or would have immediately been reversed after such a challenge. Such a thing did not happen, so we must ask why not.

The answer is that the Consent Decree itself has been modified since its original version. Specifically, in 1987, the court modified it to be less restrictive. Why? According to a petition by the RNC itself asking for the Consent Decree to be stripped entirely by the Third Circuit Court (filed this year), it was because back then, even the Democrats admitted voter fraud was a problem:

In 1987, based on allegations arising out of the 1986 election for United States Senate in Louisiana, the RNC and DNC (but not the RSC and DSC) amended the consent decree, again with no admission of wrongdoing. The 1987 modification expressly recited that “the RNC and DNC recognize the importance of preventing and remedying vote fraud where it exits.” App. 0404 (1987 Decree Modification). The 1987 Decree stated that “the RNC may deploy persons on election day to perform normal poll watch functions,” but for all other “ballot security efforts” required the RNC to seek preclearance from the court “following 20 days notice to the DNC.”

Now, obviously, this new modification - permitting "normal poll watch functions" - is ambiguous, and has been the subject of most litigation regarding the Consent Decree to this point. In fact, the RNC is presently engaged in a legal battle to have the Decree voided entirely precisely because it has been used to cripple, though (as already established) not completely destroy RNC poll watching efforts.

And make no mistake, the fact that this 30 year old decree is still in operation is both unusual and suspicious, especially given the circumstances of its renewal. From the site that blew the whistle originally:

Since 1982, that Consent Decree has been renewed every year by the original judge, Carter appointee District Judge Dickinson R. Debevoise, now 88 years old. Long retired, Debevoise comes back yearly for the sole purpose of renewing his 1982 order for another year.

Now, this is a surprisingly zealous approach by a jurist, and may suggest a partisan motivation on the part of Judge Debevoise. In the absence of other evidence to suggest this, the best that can be said is that the Decree is quite arguably past its prime, and should either be substantially loosened or vacated altogether.

However, those pushing the admittedly frustrating fact of this Consent Decree's existence as a catch-all explanation for Mitt Romney's loss of the election are severely overstating their case. The site that is most frequently cited bringing this story up, for instance, claims (erroneously) that "[Florida, Ohio, Virginia and Colorado] showed Romney ahead in the days leading up to the election. But on November 6, Romney lost all four states by a substantial margin, all of which have precincts that inexplicably went 99% for Obama, had voter registrations that exceeded their population, and had experienced  problems with voting machines." With the exception of the line about voting machines, and the fact that some precincts were highly partisan in their outcome, not one part of this passage is true. Polls had showed Ohio stubbornly out of Romney's reach for weeks, and had been trending toward Obama in Virginia, Colorado and Florida.

The site also claims that "The agreement in effect gives a carte blanche to the Democrat Party to commit vote fraud in every voting district across America that has, in the language of the Consent Decree, 'a substantial proportion of racial or ethnic populations.” The term “substantial proportion' is not defined." This, too, is utterly false. Republicans can, and have, gotten court approval to implement poll watching methods under this decree, and Democratic lawsuits claiming Republican voter suppression have been dismissed in the courts in the past.

Finally, the site misleadingly quotes only those passages of the 1987 modification to the Consent Decree that support their hypothesis - that the RNC is banned from acting against voter fraud - while conspiracy theorizing that can only be described as absurd. They also falsely claim that the Consent Decree was most recently upheld purely by the caprice of an Obama appointee. In actuality, a three judge panel from the Third Circuit Court of Appeals upheld the Decree, and the RNC is presently petitioning to have the entire Third Circuit hear the case again, and the three-judge panel only extended the Consent Decree's effect through 2017.

Moreover, even if it were true that this Consent Decree mysteriously stopped the RNC from using every tool at its disposal to catch voter fraud, and even if it were true that voter fraud was systematically pushed to such a sufficient degree that the election could be stolen without anyone noticing, and even if it were true that nonpartisan poll watchers like True the Vote were rendered wholly unable to prevent this fraud by the law, that would simply mean that the Democrats stole the election fair and square by hamstringing their opponents so effectively that even when something illegal was happening, the law itself rendered their opponents powerless to prove it and stop it.

This may be an argument for the RNC retaining better counsel and aggressively trying to get the Decree thrown out, but it would not persuade any court to reverse the election results or ask for a recount because there is nothing illegal in the Consent Decree, nor does it fail to pass constitutional muster, nor was it originally imposed on the RNC against their will. It is in every way a routine legal document that the RNC freely agreed to abide by, and because of this, even if the Decree were the fraud-permitting caricature that its opponents suggest it is, the RNC would still have to abide by it because they themselves agreed to abide by it.

Bottom line: No, it is not true that the RNC cannot act to prevent voter fraud, though it is true that it is hobbled in any efforts to do so by a quite arguably out of date legal document that can be, should be, and is being challenged in the court system at this very moment. All the conspiracy theorizing on the internet, however, will not transform this inconvenience into a mandate for election theft. Those looking for an explanation for the GOP's failures had better look at the actual causes of lost elections - namely, bad messaging, poor campaigning, an inferior ground game, or a weak candidate - and leave the conspiracy theorizing about obscure legal documents alone.