RNC History of criminal election law violations

1968-“the Chennault Affair.” LBJ Presidential library

 

“Now, I’m reading their hand Everett. I don’t want this to get in the campaign. And they oughtn’t to be doing this. This is treason.”

 

– President Lyndon B. Johnson

 

On a telephone call with Sen. Everett Dirksen, Nov. 2, 1968 [Listen]

 

The Chennault Affair

 

Nixon gave Haldeman his orders: Find ways to sabotage Johnson’s plans to stage productive peace talks, so that a frustrated American electorate would turn to the Republicans as their only hope to end the war.

 

Fifty years ago this year, on Oct. 31, 1968, President Lyndon B. Johnson announced a halt to the bombing of North Vietnam in hopes of encouraging peace talks to end the Vietnam War. At the time, Johnson knew a secret. Some in the Nixon campaign were secretly communicating with the South Vietnamese Government in an effort to delay the opening of the peace talks. They offered the prospect of a better deal for South Vietnam if Nixon became president.

 

The gambit worked, and the Chennault Affair, named for Anna Chennault, the Republican doyenne and fundraiser who became Nixon’s back channel to the South Vietnamese government, lingered as a diplomatic and political whodunit for decades afterward.

 

 

1972 – Watergate- Congressional Record/Court cases

By early 1972, the Plumbers, at this stage assigned to the Committee to Re-Elect the President (CRP), had become frustrated at the lack of additional assignments they were being asked to perform, and that any plans and proposals they suggested were being rejected by CRP. Liddy and Hunt took their complaints to the White House – most likely to Charles Colson – and requested that the White House start putting pressure on CRP to assign them new operations. It is likely that both Colson and White House Chief of Staff H.R. Haldeman did so, starting the train of events that led to the Watergate break-ins a few months later.

 

1981- Consent decree (2010 DNC RNC Consent decree)

 

  1. 1981 Lawsuit and Consent Decree

 

During the 1981 New Jersey gubernatorial election,

the DNC, the New Jersey Democratic State Committee

(“DSC”), Virginia L. Peggins, and Lynette Monroe brought

an action against the RNC, the New Jersey Republican State

Committee (“RSC”), John A. Kelly, Ronald Kaufman, and

Alex Hurtado, alleging that the RNC and RSC targeted

minority voters in an effort to intimidate them in violation of

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. The RNC allegedly created

a voter challenge list by mailing sample ballots to individuals

in precincts with a high percentage of racial or ethnic

minority registered voters and, then, including individuals

whose postcards were returned as undeliverable on a list of

voters to challenge at the polls. The RNC also allegedly

enlisted the help of off—duty sheriffs and police officers to

intimidate voters by standing at polling places in minority

precincts during voting with “National Ballot Security Task

Force” armbands. Some of the officers allegedly wore

firearms in a visible manner.

 

The relief contract was restrictive, but the most important provision was thus:

 

(e) refrain from undertaking any

ballot security activities in polling

places 01‘ 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

toward districts that have a

substantial proportion of racial or

ethnic populations shall be

considered relevant evidence of

the existence of such a factor and

purpose;

 

2 The RNC agreed that the RNC, its agents, servants, and

employees would be bound by the Decree, “whether acting

directly or indirectly through other party committees.” (Li at

402.) 

 

1987 Enforcement Action for RNC Violation and Consent Decree

Modifications : 2010 DNC RNC Consent decree decision, 3rd Circuit

 

In Louisiana during the 1986 Congressional elections,

the RNC allegedly created a voter challenge list by mailing

letters to African—American voters and, then, including

individuals whose letters were returned as undeliverable on a

list of voters to challenge. A number of voters on the

challenge list brought a suit against the RNC in Louisiana

state court. In response to a discovery request made in that

suit, the RNC produced a memorandum in which its Midwest

Political Director stated to its Southern Political Director that

“this program will eliminate at least 60,000—80,000 folks

from the rolls . . . If it’s a close race . . . which I’m assuming

it is, this could keep the black vote down considerably.”

Democratic Nat’l Comm. V. Republican Nat’l Comm, 671 F.

Supp. 2d 575, 580 (D.N.J. 2009) (citing Thomas Edsall,

Ballot Security Effects Calculated: GOP Aide Said Louisiana

Effort “Could Keep the Black Vote Down,” WASH. POST,

OCT. 24, 1986 at A1.

 

404.) In the 1982 Decree, the RNC had

agreed to specific restrictions regarding its ability to engage

in “ballot security activities,” but that Decree did not define

the term “ballot security activities.” (App. at 401.) As

modified in 1987, the Decree defined “ballot security

activities” to mean “ballot integrity, ballot security or other

efforts to prevent or remedy vote fraud.” Democratic Nat’l

Comm, 671 F. Supp. 2d at 581. 

The modifications also added a preclearance provision that

prohibits the RNC from assisting or engaging in ballot

security activities unless the RNC submits the program to the

Court and to the DNC with 20 days’ notice and the Court

determines that the program complies with the Consent

Decree and applicable law\\

 

C. 1990 Enforcement Action – modifications 2010 DNC RNC Consent decree decision, 3rd Circuit

 

3 The modifications state that

 

the RNC shall not engage in, and

shall not assist or participate in,

any ballot security program unless

the program (including the

method and timing of any

challenges resulting from the

program) has been determined by

this Court to comply with the

provisions of the Constitution

 

In 1990, the DNC brought a lawsuit alleging that the

RNC violated the Consent Decree by participating in a North

Carolina Republican Party (“NCRP”) program. The DNC

alleged that the RNC had violated the Decree in North

Carolina by engaging in a program of the North Carolina

Republican Party (“NCRP”) in which 150,000 postcards were

sent to residents of predominantly African-American

precincts. This program allegedly attempted to intimidate

voters by warning that it is a “federal crime . . . to knowingly

give false information about your name, residence or period

of residence to an election official.” Democratic Nat’l

Comm, 671 F. Supp. 2d at 581. The postcards falsely stated

that there was a 30-day minimum residency requirement prior

to the election during which voters must have lived in the

precinct in which they cast their ballot.

 

The District Coult found that the DNC failed to

establish that the RNC conducted, participated in, or assisted

in the postcard program. However, the Court also found that

the RNC violated the Consent Decree by failing to give the

state parties guidance on unlawful practices under the

Consent Decree or copies of the Decree when the RNC gave

them ballot security instructional and informational materials.

The Court held that the RNC must provide a copy of the

Consent Decree, or information regarding unlawful practices

under the Consent Decree, along with any such instructional

or informational materials that the RNC distributes in the

future to any state party.

 

2000    Florida voter purge

Background: Database Technologies Inc. (DBT)

Florida devoted unprecedented resources to the task. In 1998, under the purview of Katherine Harris’s predecessor, the Florida Department of Elections gave Database Technologies Inc. (DBT) a contract for a first-year fee of $2,317,800 to scrub the voter rolls. (The firm previously doing the work for the Florida Board of Elections had been awarded the job for a bid of $5,700.) The terms of this contract were not publicly disclosed. [2]

Greg Palast reports that even for an ambitious effort, this payment on a per-record basis was more than ten times the industry norm. The state and DBT justified this unusually high figure based on contract requirements that called for “manual verification using telephone calls and statistical sampling.” [3] However, it appears that DBT was paid such a grand sum precisely not to verify names. One list from DBT included 8,000 names from Texas supplied by George Bush’s state officials. [4] Serious criminals are barred from voting in Florida, and these 8,000 voters were all listed as having been felons in Texas. As it turns out, almost none were. Nearly all had committed only minor violations and misdemeanors. Typical was Reverend Willie Whiting, who was removed from the voting rolls for a speeding ticket twenty-five years earlier. [5]

Why so many non-felons were “scrubbed” from the voting rolls

Under orders from Harris’s office, DBT provided matches of anyone with a close name. Thus, for example, John Jackson is a black man who had served time in Texas, so Johnny Jackson Jr., a black man in Florida with the same birth date, was purged from the registration rolls. [6] DBT used lists of former felons that included names and birth dates and race, but counted as a “match” names that were only approximate. DBT specifically wrote Harris’s office to say that their name-match criteria would include a large number of nonfelons, and Harris’s office advised them in writing to lower the name-match criterion further to 85%. All told, DBT generated a list of 82,389 voters to purge from registries. [7]

DBT subsequently tried to defend their lists by claiming they were 85% accurate. [8] But that would still mean that well over 10,000 mostly minority, poor, and Democratic Floridians were illegally disenfranchised — more than twenty times Bush’s margin of victory in the state. Plus, where verification was attempted, the accuracy of the list was nowhere near 85%. Officials in Leon County, Florida, tried to verify the 694 names on the list from Tallahassee and found only 34 to be a match—a 5% accuracy rate. [9]

Robert E. Pierre reported in the Washington Post that responsibility for this faulty voter purge lies with Harris’s office, not DBT: From the beginning, Database Technologies raised serious concerns that non-felons could be misidentified. … “Obviously, we want to capture more names that possibly aren’t matches,” said Emmett “Bucky” Mitchell, who headed the state purge effort, in a March 1999 e-mail to Database Technologies product manager Marlene Thorogood, who had warned him of possible mistakes. … Clay Roberts, director of the state’s division of elections, confirmed the policy. … “The decision was made to do the match in such a way as not to be terribly strict on the name.” “We warned them,” said James E. Lee, vice president of communications for the company. “The list was exactly what the state wanted. They said, ‘The counties will verify the information, so you don’t have to.’” [10]

Punishment/penalties for erroneous disenfranchisement

Florida officials neither sought reimbursement nor penalty, but rather awarded DBT another contract renewal, bringing total fees to over $4 million. [11]

 

US Commission on Civil Rights: Voting Irregularities in Florida During the 2000 Presidential Election

 

Chapter 9

 

Findings and Recommendations

 

The great majority of Americans . . . are uneasy with injustice but unwilling yet to pay a significant price to eradicate it.[1]

 

OVERVIEW

 

The U.S. Commission on Civil Rights conducted an extensive public investigation of allegations of voting irregularities during the 2000 presidential election in Florida. The investigation, utilizing the Commission’s subpoena power, included three days of hearings, more than 30 hours of testimony, 100 witnesses, and a systematic review of more than 118,000 pages of pertinent documents.[2]

 

Perhaps the most dramatic undercount in Florida’s election was the uncast ballots of countless eligible voters who were turned away at the polls or wrongfully purged from voter registration rolls.

 

While statistical data, reinforced by credible anecdotal evidence, point to widespread disenfranchisement and denial of voting rights, it is impossible to determine the extent of the disenfranchisement or to provide an adequate remedy to the persons whose voices were silenced in this historic election by a pattern and practice of injustice, ineptitude, and inefficiency.

 

Despite the closeness of the election, it was widespread voter disenfranchisement, not the dead-heat contest, that was the extraordinary feature in the Florida election. The disenfranchisement was not isolated or episodic. And state officials failed to fulfill their duties in a manner that would prevent this disenfranchisement.

 

The Commission does not adjudicate violations of the law, hold trials, or determine civil or criminal liability. Therefore, the recommendations that follow urge the U.S. Department of Justice and Florida officials to institute formal investigations based on the facts in this report to determine liability and to seek appropriate remedies.

 

The Commission is charged to “investigate allegations in writing under oath or affirmation relating to deprivations—(A) because of color, race, religion, sex, age, disability, or national origin; or (B) as a result of any pattern or practice of fraud; of the right of citizens of the United States to vote and have votes counted. . . .”[3] The Commission is also charged with reporting its findings to the President and Congress as appropriate.[4] The uncontroverted evidence leads the Commission to the following findings and recommendations.

 

CHAPTER 1: VOTING SYSTEM CONTROLS AND FAILURES

 

Voter Disenfranchisement

 

Findings

 

During Florida’s 2000 presidential election, restrictive statutory provisions, wide-ranging errors, and inadequate resources in the Florida election process denied countless Floridians of their right to vote.

 

This disenfranchisement of Florida voters fell most harshly on the shoulders of African Americans. Statewide, based on county-level statistical estimates, African American voters were nearly 10 times more likely than white voters to have their ballots rejected in the November 2000 election.[5]

 

Poorer counties, particularly those with large minority populations, were more likely to use voting systems with higher spoilage rates than more affluent counties with significant white populations. For example, in Gadsden County, the only county in the state with an African American majority, approximately one in eight voters was disenfranchised. In Leon County, on the other hand, which is home to the prosperous state capital and two state universities, fewer than two votes in 1,000 were not counted. In Florida, of the 100 precincts with the highest numbers of disqualified ballots, 83 of them are majority-black precincts. 

 

Even in counties where the same voting technology was used, blacks were far more likely to have their votes rejected than whites.

 

The recently enacted election reform law mandates that a county must use an electronic or electromechanical precinct-count tabulation voting system and that as of September 2, 2002, a voting system that uses a device for the punching of ballots by the voter may not be used in Florida.

 

While technology improvements and the adoption of state-of-the-art voting systems statewide should reduce overall ballot spoilage rates and lessen the disparity between the rate that African Americans’ and white voters’ ballots are rejected, these enhancements will not, standing alone, eliminate the racial disparity in ballot rejection rates.

 

The allocation of adequate financial resources and enhanced, effective training of poll workers, other election workers, educating voters, and accountability standards for state and local officials, as well as technological improvements in voting systems, should reduce the rate at which ballots are spoiled and should lessen the disparity in vote spoilage rates between whites and blacks.

 

The Voting Rights Act of 1965, as amended, prohibits intentional discrimination and forbids practices or procedures that (when considering the “totality of the circumstances”) result in people of color being denied equal access to the political process.

 

Under the Voting Rights Act of 1965, as amended, jurisdictions covered under section 5 of the act cannot make voting changes unless and until they obtain approval (preclearance) either from the federal district court in Washington, D.C., or from the U.S. attorney general. Five Florida counties are subject to section 5 requirements: Collier, Hardee, Hendry, Hillsborough, and Monroe.

 

https://web.archive.org/web/20041217000309/http://www.usccr.gov/pubs/vote2004/elect04.pdf

2004 Enforcement Action (the “Malone enforcement action” (Source: 2010 DNC RNC Consent decree))

 

In 2004, the week before the general eIection for

President, Ebony Malone (“Malone”), an African—American

 

 

 

Case: 09-4615 Document: 003110830723 Page: 10 Date Filed: 03/08/2012

 

resident of Ohio, brought an enforcement action against the

RNC, alleging that the RNC had violated the Consent Decree

by participating in the compilation of a predominantly—

minority voter challenge list of 35,000 individuals from Ohio.

Malone’sname was on the list. To compile the list, the RNC

had sent a letter to registered voters in high minority

concentration areas of Cleveland and the Ohio Republican

Party sent a second mailing approximately a month later.

Registered voters whose letters were returned as

undeliverable were added to the challenge list.

 

Seeking solace pursuant to the Decree, Malone sought

before the District Court a preliminary injunction barring the

RNC and any state organizations with which it was

cooperating from using the list in ballot security efforts.

 

On November 1, 2004, the DNC appeared before the

District Court at an evidentiary hearing in suppott of Malone.

The RNC argued that Malone’s suit was non-justiciable due

To irregularities in her registration which would result in her

being challenged by the Ohio Board of Election regardless of

any separate challenge brought by the RNC. The RNC also

claimed that it had complied with the Decree and that the

potential challenge to Malone voting was a “normal poll

watch function[]” allowed by the Decree. (App. at 405.)

Finally, the RNC asseited that the Ohio Republican Party,

which was not subject to the Decree, would carry out any

challenge to Malone’s eligibility to vote.

 

Following an evidentiary hearing, the District Court

issued an Order barring the RNC from using the list to

challenge voters and directing the RNC to instruct its agents

in Ohio not to use the list for ballot security efforts. The

District Couit rejected the RNC’s argument that Malone’s

 

10

 

 

 

Case: 09-4615 Document: 003110830723 Page: 11 Date Filed: 03/08/2012

 

claims were non—justiciable because she would suffer

irreparable harm if she had to endure multiple challenges to

her eligibility to vote. The District Court found that the RNC

had violated the procedural and substantive provisions of the

Consent Decree by participating with the Ohio Republican

Party in devising and implementing the ballot security

program and failing to obtain preclearance for the program.

 

The RNC requested that our Couit stay the Order. The

panel denied the request for a stay and affirmed the District

Court’s Order, noting that emails between the RNC and the

Ohio Republican Party showed collaboration between the two

organizations sufficient to suppmt the District Court’s factual

findings.

 

The RNC petitioned for rehearing en banc. We

granted the petition for rehearing en banc the next day,

Election Day, November 2, 2004. This Court vacated the

panel’s ruling and stayed the District Court’s Order. Before

the entire Court could hear the matter en banc, Malone cast

her ballot without being challenged. After Malone voted

without challenge, Justice Souter, in his capacity as Circuit

Justice for the Third Circuit, denied Malone’s application to

the Supreme Court seeking reinstatement of the injunction.

We dismissed the appeal as moot, without addressing the

merits.

.

2005- Electoral vote count in Ohio challenged, after Consent Decree action (Source:Congressional Record)

https://www.congress.gov/congressional-record/2005/1/6/house-section/article/h84-6?s=1&r=13

 

    Mr. Blackwell’s widely reviled decision to reject voter 

     registration applications based on paper weight may have 

     resulted in thousands of new voters not being registered in 

     time for the 2004 election.

       The Ohio Republican Party’s decision to engage in 

     preelection “caging” tactics, selectively targeting 35,000 

     predominantly minority voters for intimidation had a negative 

     impact on voter turnout. The Third Circuit

 

     found these activities to be illegal and in direct violation 

     of consent decrees barring the Republican Party from 

     targeting minority voters for poll challenges.

       The Ohio Republican Party’s decision to utilize thousands 

     of partisan challengers concentrated in minority and 

     Democratic areas likely disenfranchised tens of thousands of 

     legal voters, who were not only intimidated, but became 

     discouraged the long lines. Shockingly, these disruptions 

     were publicly predicted and acknowledged by Republican 

     officials: Mark Weaver, a lawyer for the Ohio Republican 

     Party, admitted the challenges “can’t help but create chaos, 

     longer lines and frustration.”

       Mr. Blackwell’s decision to prevent voters who requested 

     absentee ballots but did not receive them on a timely basis 

     from being able to receive provisional ballots likely 

     disenfranchised thousands, if not tens of thousands, of 

     voters, particularly seniors. A federal court found Mr. 

     Blackwell’s order to be illegal and in violation of HAVA.

       Second, on election day, there were numerous unexplained 

     anomalies and irregularities involving hundreds

 

2005

 

    In 2005, the Free Press exposed that Matt Damschroder, Republican chair of the Franklin County of Elections in 2004, reported that a key Diebold operative told Damschroder he made a $50,000 contribution to then-Ohio Secretary of State J. Kenneth Blackwell’s “political interests” while Blackwell was evaluating Diebold’s bids for state purchasing contracts. Damschroder admitted to personally accepting a $10,000 check from former Diebold contractor Pasquale “Patsy” Gallina made out to the Franklin County Republican Party. That contribution was made while Damschroder was involved in evaluating Diebold bids for county contracts. Damschroder was suspended for a month without pay for the incident. Despite the scandal, he was later appointed as Ohio Secretary of State Jon Husted’s Director of Elections.

 

2016-under consideration @ the 3rd Circuit

Two cases were decided and found to have discriminatory intent, and both are ballot security initiatives prohibited by consent decree, in addition to the GOP platform which explicitly calls for ballot security initiatives.

2016 GOP Platform:

For this reason, we support legislation to require proof of citizenship when registering to vote and secure photo ID when voting. We strongly oppose litigation against states exercising their sovereign authority to enact such laws. In addition, to guarantee that everyone’s vote is counted, we urge that electronic voting systems have a voter-verified paper audit trail. We urge every state to join the Interstate Voter Registration Cross Check Program to keep voter rolls accurate and to prevent people from voting in more than one state in the same election.

Veasy v Abbott (Discriminatory Intent finding)

(Discriminatory Intent finding on Remand from 5th Circuit) https://www.brennancenter.org/sites/default/files/legal-work/2017-04-10_Order_Intent.pdf)

“5. Legislative Drafting History Proponents touted SB 14 as a remedy for voter fraud, consistent with efforts of other states. As previously demonstrated, the evidence shows a tenuous relationship between those rationales and the actual terms of the bill.

NAACP v McCrory (Discriminatory Intent finding)

       

Governor Patrick L. McCrory signed Session Law 2013-381,

  1. Voter Information Verification Act, S.L. 2013-381, 2013 N.C. Sess. Laws 1505 (codified as amended in scattered sections of N.C. Gen. Stat.).which required several changes to the state’s voting procedures by 2016.

The law accepted a limited pool of photo IDs for in-person voting, reduced the number of early voting days from seventeen to ten, eliminated same-day registration, eliminated preregistration for sixteen- and seventeen-year-olds, and banned out-of-precinct provisional voting.

Before ratifying the law, the state legislature had requested and considered racial data showing that black Americans disproportionately relied on all of the voting procedures the law eliminated or restricted and disproportionately used forms of identification the law excluded.

 

Incomplete list of the Federal cases which are RNC or affiliated organization sponsored expressly ballot security initiatives in 2013-2016 

        One Wisconsin Institute v. Thomsen

Feldman v. Arizona

Lee v. Virginia Board of Elections

Common Cause v. Rucho

Ohio A. Philip Randolph Institute and NEOCH v. Husted

League of Women Voters v. NewbyNorth Carolina State Conference of the NAACP v. The North Carolina State Board of Elections

Florida Democratic Party v. Detzner

Common Cause v. Kemp

Fish v Kobach

 

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