Last week, the Democratic National Committee ("DNC") filed a motion in the United States District Court for the District of New Jersey seeking to hold the Republican National Committee ("RNC") in contempt and to enforce the RNC's compliance with an anti-voter-intimidation consent decree ("Decree" or "Consent Decree") that was originally entered by the court in 1982, modified in 1987, and modified again in 2009. As modified, the Consent Decree permits normal poll-watching activities by the RNC, but imposes various requirements and restricts the RNC's ability to conduct "ballot security" efforts, which are defined as measures "aimed at combating voter fraud by preventing potential voters from registering to vote or casting a ballot."
The Consent Decree is set to expire on December 1, 2017. However, if the DNC proves that the RNC has violated the terms of the Decree, it "shall be extended for eight years from the date of that violation."
Among other things, the DNC cited this newspaper article published on October 19, 2016, in which The Detroit News reported that Michigan State Republican Party Chair Ronna Romney McDaniel had instructed state party officials "to prepare a massive statewide anti-voter fraud effort to go along with our last-minute get-out-the-vote (GOTV) efforts." The DNC claims that, because Romney McDaniel serves as a member of the RNC in addition to serving as Michigan State Party Chair, this "massive statewide anti-voter fraud effort" in Michigan would violate the terms of the Consent Decree.
On Monday, United States District Judge John Vazquez ordered the RNC to provide an affidavit or affidavits "setting forth in detail the efforts of RNC member, Ronna Romney McDaniel, to prepare a massive statewide anti-voter-fraud effort in Michigan." In addition, Judge Vazquez ordered that "[t]he affidavit or affidavits should also address why Ms. Romney McDaniel's efforts, if any, are not on behalf of the RNC."
Today, the RNC filed affidavits and a supplemental memorandum in response to Judge Vazquez's discovery order. In its memorandum, the RNC stated that Romney McDaniel had been "quoted in her capacity as Chairwoman of the Republican Party of Michigan, not in her capacity as an RNC member." The RNC also claimed that it "is not participating or assisting in the [Michigan] State Party's poll watching effort." In an attached affidavit, RNC Chief Counsel John Phillippe, Jr., averred that the article in the The Detroit News had quoted Romney McDaniel in her capacity as a Michigan State Party Chair, and not her capacity as an RNC member. Phillippe confirmed that state Republican Party chairs automatically become members of the RNC upon their election. Phillippe also averred that he had spoken to attorney Eric Doster, who told him that the Michigan Republican Party's efforts would focus "predominantly on get-out-the-vote activities," and that there had been "no discussions with or involvement by the RNC in the program."
As an initial matter, Phillippe's affidavit is fairly weak and self-serving. It also contains hearsay and certain conclusory statements that do not appear to be based on personal knowledge. I question how much of his affidavit is actually admissible in evidence.
At any rate, it is not clear that the U.S. District Court will accept the RNC's bald assertion that Romney McDaniel was acting solely in her capacity as Michigan State Party Chair when she spoke about her planned "massive statewide anti-voter fraud effort." Romney McDaniel's comments must be viewed in context. Donald Trump and his various surrogates have made curiously similar claims pertaining to anti-voter-fraud activities and voter-intimidation efforts. It is entirely possible that the U.S. District Court will view Romney McDaniel's remarks as a coordinated part of a larger, national GOP effort to "combat voter fraud by preventing potential voters from . . . casting a ballot." And if this is the case, the court could extend the Consent Decree for another eight years.
According to Chris Geidner of BuzzFeed News, the RNC has encouraged its members "not to engage in 'ballot security' activities even in your . . . state party . . . capacity," and has warned its various agents and employees that "you cannot take off your RNC 'hat' and partake in activities prohibited by the Consent Decree by serving in some other capacity . . . ." Romney McDaniel serves in dual capacities as an RNC official and state party chair. So why wouldn't this reasoning apply to her?
Given the potential seriousness of this matter for the national GOP organization, I would have expected RNC officials to respond with slightly stronger evidence of non-involvement in state anti-voter-fraud efforts. But maybe there is no stronger evidence. The U.S. District Court will consider the DNC's arguments in this case at a hearing on Friday. Stay tuned as this story continues to develop.
On Saturday, the United States District Court for the District of New Jersey issued this order denying the DNC's request for injunctive relief and to hold the RNC in contempt. The Court did note, however, that "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."