RNC Consent Order Amicus Brief-Filed

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Document: 003110034965
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Date Filed: 02/24/2010
IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________________________________________________________ No. 09-4615 ___________________________________________________ DEMOCRATIC NATIONAL COMMITTEE, et al. Plaintiffs Appellees, v. REPUBLICAN NATIONAL COMMITTEE, et al. Defendants Appellants. __________________________________________________ On Appeal From the United States District Court For the District of New Jersey __________________________________________________ BRIEF OF AMICI CURIAE KARL S. BOWERS, JR., HANS A. VON SPAKOVSKY, ASHEESH AGARWAL, ROBERT N. DRISCOLL, ROGER CLEGG, AND ERIC EVERSOLE IN SUPPORT OF APPELLANT REPUBLICAN NATIONAL COMMITTEE AND IN SUPPORT OF REVERSAL OF THE DISTRICT COURTS DECISION __________________________________________________ Karl S. Bowers, Jr. M. Todd Carroll HALL & BOWERS, LLC 1329 Blanding Street Columbia, S.C. 29201 Telephone: 803.454.6504 Facsimile: 803.454.6509 Counsel for Amici Curiae Date: February 24, 2010
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TABLE OF CONTENTS
INTEREST OF AMICI CURIAE ............................................................................. 1 INTRODUCTION .................................................................................................... 4 I. II. The District Courts Consent Decree ................................................... 4 Intervening Legislation: The National Voter Registration Act and the Help America Vote Act .................................................... 5
ARGUMENT ............................................................................................................ 7 I. The enactment of important federal voting rights statutes since the imposition of the Consent Decree renders it outdated and unnecessary. .................................................................... 7 The Consent Decree actually deters the implementation of safeguards by the RNC that would help prevent vote fraud and would promote and protect the integrity of elections.............................................................................................. 13 A. B. Party monitors play key roles in protecting the sanctity of polling places and ballots. ...................................... 13 Ballot security programs assist in deterring vote fraud. ........................................................................................ 15
II.
CONCLUSION ....................................................................................................... 17
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TABLE OF AUTHORITIES
Cases Brunner v. Ohio Republican Party, 555 U.S. ___, 129 S. Ct. 5 (2008) (per curiam) ....................................................................................................... 11 Crawford v. Marion County Election Bd., 553 U.S. ____, 128 S. Ct. 1610 (2008) ........................................................................................................ 16 Ohio Republican Party v. Brunner, 544 F.3d 711 (6th Cir. 2008) ................. 8 Tiryak v. Jordan, 472 F. Supp. 822 (E.D. Pa. 1979) .................................... 14 Statutes 42 U.S.C. 15482(a) ...................................................................................... 9 42 U.S.C. 15511 ......................................................................................... 11 42 U.S.C. 1973gg-10 ................................................................................. 10 42 U.S.C. 1973gg-3(a). ................................................................................ 8 42 U.S.C. 1973gg-4 ..................................................................................... 8 42 U.S.C. 1973gg-5(a)(2)(A)....................................................................... 8 42 U.S.C. 1973gg-5(a)(2)(B) ....................................................................... 8 42 U.S.C. 1973gg-5(a)(3) ............................................................................ 8 42 U.S.C. 1973gg-6 ..................................................................................... 8 42 U.S.C. 1973gg-6(d)(1) ............................................................................ 8 42 U.S.C. 1973gg-6(d)(2). ........................................................................... 8 42 U.S.C. 1973gg-9(a). .............................................................................. 10 42 U.S.C. 15301 et seq. ............................................................................. 6 42 U.S.C. 1973gg et seq. ........................................................................... 6 42 U.S.C. 1973gg-9(a) and (b) ................................................................ 11 Other Authorities Commn on Fed. Election Reform, Building Confidence in U.S. Elections 2.5, at 18 (Sept. 2005) ............................................................................ 16
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INTEREST OF AMICI CURIAE Karl S. Bowers, Jr. served as Special Counsel for Voting Matters with the U.S. Department of Justice from 20072008. As Voting Counsel, Mr. Bowers oversaw the activities of the Voting Section of the Justice Departments Civil Rights Division, and he provided legal and policy counsel on federal election law matters to senior officials in the Justice Department. Mr. Bowers is also a former Chairman of the South Carolina State Election Commission. Mr. Bowers is currently in private practice as a partner in the law firm of Hall & Bowers in Columbia, S.C., where he focuses on public policy matters including election and voting law, campaign finance law, and legislative and regulatory matters. Hans A. von Spakovsky is a former member of the Federal Election Commission. He served for three years as the Counsel to the Assistant Attorney General for Civil Rights at the U.S. Department of Justice where he provided advice and legal counsel on enforcement of federal voting statutes. He is also a former member of the Fulton County Registration and Election Board, which was responsible for administering elections in the largest county in Georgia. Asheesh Agarwal served as a Deputy Assistant Attorney General in the Civil Rights Division of the U.S. Department of Justice from 20052008. 1
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In that position, Mr. Agarwal supervised the Division's Voting Section. During his tenure, Mr. Agarwal supervised the Division's program to monitor elections around the country and personally monitored several elections himself. Moreover, in Northwest Austin Municipal Utility District Number One v. Gonzales, Mr. Agarwal defended Congress's reauthorization of the Voting Rights Act before a three-judge panel. Mr. Agarwal is
currently in private practice in the Indianapolis, Indiana office of a national law firm. Robert N. Driscoll served as Deputy Assistant Attorney General Chief of Staff for Civil Rights at the U.S. Department of Justice from 20012003. He has testified before House and Senate Judiciary Committees on voting rights matters, and he has represented jurisdictions in matters arising under Section 2 and Section 5 of the Voting Rights Act. Mr. Driscoll is currently in private practice as a partner in the law firm of Alston & Bird in Washington, D.C., where his practice focuses on government and internal investigations and civil rights matters. Roger Clegg is a former Deputy Assistant Attorney General for Civil Rights at the U.S. Department of Justice from 1987-1991. He has held several other positions at the U.S. Justice Department, including Assistant to the Solicitor General from 1985-1987, Associate Deputy Attorney General
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from 1984-1985, and Acting Assistant Attorney General in the Office of Legal Policy in 1984. Mr. Clegg devotes significant time and resources to the study of the prevalence of racial and ethnic discrimination by the federal government, the states, and private entities. He is also a public advocate for the cessation of racial and ethnic discrimination. Eric Eversole served as Litigation Attorney in the Voting Section of the Civil Rights Division at the U.S. Department of Justice from 20052007. In that role, he represented the United States and initiated litigation in numerous cases involving Section 2 of the Voting Rights Act, the Help America Vote Act, and the National Voter Registration Act. Mr. Eversole continues to work to ensure that eligible Americans are able to vote and to ensure that their votes are counted. Amici Curiae have a substantial interest in eliminating voter intimidation, voter suppression and voter discrimination, in promoting participation, integrity and public confidence in the electoral process, and in the proper enforcement of federal election laws.
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INTRODUCTION This case requires the Court to consider whether the Consent Decree between the Democratic National Committee (DNC) and the Republican National Committee (RNC), under which the RNC has labored since 1982, continues to serve a useful purpose in American elections. More specifically, the Court must determine if the burdens placed on the RNC by the Consent Decree almost three decades ago, when the landscape of society, elections, and federal election law was dramatically different than it is today, are necessary and serve the public interest, or whether the Consent Decree must be vacated immediately because it is no longer necessary and is contrary to the public interest. I. The District Courts Consent Decree As this Court is well aware, the Consent Decree at issue in this case arose as a result of the DNCs allegations of voter intimidation by the RNC in the New Jersey gubernatorial election in 1981. The RNC denied any claims of voter intimidation, but nevertheless entered into this Consent Decree with the DNC on November 1, 1982. The Decree initially did not contain a sunset provision, and its key restraints included a requirement that the RNC refrain from undertaking any ballot security activities in polling places or election districts where a significant effect of such activities
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would be to deter qualified voters from voting. App. 0401-0403 (1982 Consent Decree 2(e)). In 1987, the Consent Decree was modified following additional allegations by the DNC that the RNC had engaged in voter suppression efforts in Louisiana. At that time, the district court modified the Decree to require the RNC to obtain court pre-approval of any ballot security programs or poll watching efforts, with 20 days notice to the DNC. App. 0404-0406 (1987 Consent Decree Modification C). In addition to providing its chief political rival with 20 days notice of its intended ballot-security actions, the modified Decree also required the RNC to state a description of the program to be undertaken, the purpose(s) to be served, and the reasons why the program complies with the Consent Order and applicable law. App. 0404-0406 (1987 Consent Decree Modification C). II. Intervening Legislation: The National Voter Registration Act and the Help America Vote Act Amici Curiae urge this Court to reverse the decision of the district court and to vacate the Consent Decree. Since the initial imposition of the Consent Decree in 1982, Congress has enacted two important pieces of federal voting rights legislation that have rendered the Consent Decree antiquated, outdated, and altogether unnecessary in light of authority vested in the United States Department of Justice by these statutes.
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In 1993, over a decade after initial entry of the Decree, Congress passed the National Voter Registration Act, 42 U.S.C. 1973gg et seq. (NVRA), which greatly expanded opportunities for individuals to register to vote. Nine years after enactment of the NVRA, Congress epassed the Help America Vote Act, 42 U.S.C. 15301 et seq. (HAVA), which provided the absolute right to cast a provisional ballot to any voter who has been challenged at the polls. These statutes, in conjunction with other enforcement efforts of the Justice Department, have had a transformative impact on increasing and enhancing voter registration and voter participation. The result, as more fully shown below, is the inescapable conclusion that the Consent Decree is a relic of yesteryear and has outlived any utility that it may have once had. In addition to being unnecessary in light of this intervening legislation, the Decree also undercuts sound public policy with respect to ensuring the integrity of the ballot box. By allowing the fox to guard the henhouse, the Decree hampers the important role that official monitors who are supervised and trained by the RNC can play at polling places. Further, legitimate poll watching activitiessuch as those that would be conducted by the RNC if freed from the constraints of the Decreelead to increased integrity and transparency in the electoral process, which in turn leads to
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greater public confidence and participation in elections. For these reasons, Amici Curiae urge reversal of the district courts ruling. ARGUMENT I. The enactment of important federal voting rights statutes since the imposition of the Consent Decree renders it outdated and unnecessary. Since the entry of the Consent Decree in 1982, Congress has significantly expanded the scope of voter protection by passing key voting rights legislation. In 1993, the NVRA was enacted, and in the aftermath of the 2000 presidential election, HAVA was passed in 2002. With the
enactment of these statutes, the authority of the Justice Department to proactively prevent and deter voter suppression and intimidation of minority voters was enhanced, and the existing regulatory and enforcement machinery that is now in place sufficiently and more appropriately prevents voter suppression and other tactics that the Consent Decree was originally designed to address. The NVRA, also colloquially known as the Motor Voter law because it allows a citizens application for a drivers license to serve simultaneously as a voter registration application, significantly enhanced voting opportunities by making it easier to register to vote and to maintain a voters registration. In particular, the NVRA made voter registration
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available (1) at the local highway department, 42 U.S.C. 1973gg-3(a); (2) at all state offices that provide public assistance, id. 1973gg-5(a)(2)(A); (3) at all state offices that provide state-funded programs that primarily serve persons with disabilities, id. 1973gg-5(a)(2)(B); (4) at other state or local government offices, such as public libraries and schools, id. 1973gg5(a)(3); and (5) by mail, id. 1973gg-4. Further, the NVRA requires states to implement nondiscriminatory list maintenance programs to ensure that accurate and current voter registration lists are available at polling places. Id. 1973gg-6. 1 While the NVRA is designed to assist the voter-registration process, HAVA was enacted in 2002 to help prevent election fraud and to improve voter access to uniform voting systems. See Ohio Republican Party v. Brunner, 544 F.3d 711, 713 (6th Cir. 2008) (explaining that HAVA helps
As part of its list maintenance procedures, the NVRA authorizes states to remove names from voting rolls if a registrant fails to respond to a postage prepaid and pre-addressed return card sent by forwardable mail via the U.S. Postal Service and then subsequently fails to vote. 42 U.S.C. 1973gg-6(d)(1) and (2). The Consent Decree prevents the RNC from making challenges based on undeliverable mail using the exact same process, which is simply illogical and contrary to public policy. If Congress has determined that that this process is accurate and reliable enough to warrant the removal of registrants from voting rolls by local election officials, which it has done with the enactment of the NVRA, then this very same procedure should certainly be deemed appropriate for a private party to utilize as the legal foundation for legitimate challenges to ineligible voters who have changed residences.
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Americans cast votes and helps to ensure that their votes count in multiple ways), vacated on grounds related to the absence of a private right of action under HAVA, 555 U.S. ___, 129 S. Ct. 5 (2008) (per curiam). As part of the sweeping changes brought about by HAVA, states are now required to allow any in-person voter whose eligibility to vote is challenged at the polling place to cast a provisional ballot. 42 U.S.C. 15482(a). The validity of provisional ballots is determined in a subsequent proceeding, and if it is found that the vote was legally cast, then it is counted. Id. In practice, under HAVA, even if a voter is challenged by a poll watcher, that voter now has an absolute right to cast at least a provisional ballot. Moreover, if the challenge was illegitimate or otherwise unsupported by facts and law, the vote will be counted. HAVA, therefore, significantly dilutesindeed, trumpsthe impact that any potential Election Day misconduct might have on deterring qualified voters from voting, as it provides legitimate voters with confidence that their votes will be counted regardless of any third-party activities or interference, real or perceived. Together, the NVRA and HAVA provide a measure of ballot security at both the state and federal levels that was unavailable when the Consent Decree was initially entered or when it was later modified. Both of these statutes now ensure that voters have minimal resistance to registering,
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casting a ballot, and having their votes countedthe very harms that the Consent Decree was designed to protect against. Moreover, any attempt to bypass these comprehensive statutes brings a violator within the jurisdiction of the United States Department of Justice, which is given regulatory authority that did not expressly exist at the time that the Decree was entered. Today, the Justice Department is authorized to bring civil actions in federal court to enforce the provisions of both statutes, and the Department has proven to be a successful and prolific advocate in that regard. With the passage of these laws, the Justice Department is now well-equipped and able to effectively deter and combat voter suppression and intimidation. Even if the DNCs primary argument for maintaining the Consent Decreethat the RNC is allegedly involved in ongoing voter suppression effortsis accepted as fact, the Justice Department is now fully empowered to take legal action to prevent and deter voter suppression following the enactment of these postConsent Decree federal laws. See 42 U.S.C. 1973gg-9(a) (The Attorney General may bring a civil action in an appropriate district court for such declaratory or injunctive relief as is necessary to carry out this subchapter.); id. 1973gg-10 (listing criminal sanctions associated with violations of the
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NVRA); id. 15511 (authorizing the Attorney General to bring suit to enforce the HAVA). 2 Nor have these statutory enforcement vehicles remained in idle since their passage. To the contrary, since 1994, the Justice Department has brought 18 enforcement actions under the NVRA. And since 2004, the Department has brought 12 claims arising under HAVA. 3 Moreover, each election cycle, the Justice Department deploys hundreds of federal observers to monitor elections around the country to ensure compliance with the antidiscrimination requirements of the Voting Rights Act. As recently as Notably, the Consent Decree deputizes the DNC, which is not a state actor, with the ability to enforce restrictions on ballot-security issues. The NVRA and HAVA, however, delegate these enforcement efforts to the Justice Department and other public officials. The NVRA, for instance, envisions the Attorney General to be its primary enforcer with assistance from state-level election officials. 42 U.S.C. 1973gg-9(a), (b). Only in narrow circumstances does a private right of action exist under the NVRA. Id. Similarly, HAVA does not expressly provide for any private enforcement efforts, see id. 15511 (authorizing only the Attorney General to file suit to enforce HAVAs provisions), and the U.S. Supreme Court has expressed doubt as to whether Congress has authorized courts to enforce HAVA "in an action brought by a private litigant". Brunner v. Ohio Republican Party, 555 U.S. ___, 129 S. Ct. 5, 6 (2008) (per curiam). In light of the primary jurisdiction the Justice Department has over enforcing these voter-protection statutes, it seems improper to allow the DNC to do an endrun around these provisions by way of the Consent Decree. For a list of these actions, see the Department of Justices Voting Section compilation of cases at http://www.justice.gov/crt/voting/litigation/caselist. php.
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February 6, 2010, the Justice Department sent federal monitors to observe a municipal election in New Orleans, Louisiana, and to coordinate with state and local election officials there to deter and prevent discriminatory conduct. Because of these powerful enforcement and monitoring provisions, the Consent Decree is no longer necessary. If the DNC has legitimate concerns about the potential for voter intimidation or the employment of voter suppression tactics, it does not need the Consent Order in place; instead, the DNC, like other political parties, organizations, and citizens, should request that the Justice Departments Civil Rights Division monitor an election. Not only will federal monitors have clearly-defined roles and responsibilities, but they will also have actual enforcement authority of all federal voting rights laws, including those that are duplicative of the provisions of the Consent Decree. As a result of the intervening passage of comprehensive voting-rights legislation that is enforced by the Justice Department, the Consent Decree is no longer needed to ensure the integrity of the ballot box and should be vacated. In fact, its continued enforcement only jeopardizes confidence in elections.
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II.
The Consent Decree actually deters the implementation of safeguards by the RNC that would help prevent vote fraud and would promote and protect the integrity of elections. A. Party monitors play key roles in protecting the sanctity of polling places and ballots.
In addition to the Justice Departments enforcement efforts, poll watchers who have been well-trained and preapproved by political parties have an important place in elections of today. With increased voter
participation and recent changes in the voting processsuch as the use of electronic voting machines, the introduction of early voting, and voter photo identification requirementsthe importance of having poll watchers in polling places on Election Day is clear now more than ever. The primary purpose for having poll watchers is to ensure that elections are conducted properly and fairly for all voters and for all candidates on the ballot. Poll Watchers observe the voting process in order to identify irregularities or problems, and they can help understaffed poll officials quickly identify and solve any such problems. From time to time, election officials are sometimes inexperienced, poorly trained, or both, and they can be overwhelmed with large crowds and long lines of voters on Election Day. It is in these instances that independent poll watchers add particular value to process. Well-trained and experienced poll watchers can
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provide invaluable assistance to poll workers by identifying problems early on and offering solutions before the problems become widespread. Additionally, poll watchers also help ensure that all votes that are legitimately cast are counted accurately by witnessing and verifying the ballot-counting process. Moreover, the presence of independent poll
watchers can help prevent any malfeasance at the polls and ultimately contribute to the honesty and integrity of elections. To be sure, as one of this Circuits district courts summed: [B]ecause exercise of his authority promotes an honest election, the poll-watchers function is to guard the integrity of the vote. Tiryak v. Jordan, 472 F. Supp. 822, 824 (E.D. Pa. 1979). Of course, these beneficial functions are thwarted if a particular organization or political party is required to abstain from implementing a reasonable poll watching program, which is the practical effect of the Consent Decree and, more particularly, its preclearance requirement. Despite the clear value of poll watchers and ballot-security initiatives, the Consent Decree precludes RNC monitors from actively participating in the process. The Consent Decree is therefore contrary to the public interest because it effectively prevents one of the two major national political parties from providing a key component to ensuring the integrity of the voting
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process. In fact, it is hard to imagine that the Consent Decree was ever intended to be used to thwart carefully conducted ballot security and poll watcher programs, but it unfortunately has been perverted to bring about that precise effect. As a result, it is clearly in the public interest that the Court vacate the Consent Decree. B. Ballot security programs assist in deterring vote fraud.
The Consent Decree effectively prevents the RNC from engaging in legitimate poll watching and ballot security efforts. Poll watchers and
monitors from both the RNC and the DNC would ensure that their state and local affiliates engage in legitimate poll-monitoring activities that use welltrained observers who know and obey the law. Active poll monitoring programs are an essential antidote to vote fraud, but the Consent Decree severely restricts the RNCs ability to establish and operate such programs. Both the RNC and the DNC, like other political parties, have an interest in preventing actual or threatened vote fraud. The deterrence of vote fraud helps preserve the integrity of the voting process and promote confidence in our electoral system, and it helps prevent the dilution of votes cast by legitimate voters. Flagrant examples of vote fraud have been
documented throughout this Nations history, and [t]here is no question about the legitimacy or importance of the States interest in counting only
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the votes of eligible voters. Crawford v. Marion County Election Bd., 553 U.S. ____, 128 S. Ct. 1610, 1619 (2008). Ballot security programs provide effective safeguards for use in the deterrence of vote fraud, and they play an integral role in promoting and inspiring public confidence in our electoral system. As one study observed: The electoral system cannot inspire public confidence if no safeguards exist to deter or detect fraud or to confirm the identity of voters. Commn on Fed. Election Reform, Building Confidence in U.S. Elections 2.5, at 18 (Sept. 2005).4 Public confidence in the integrity and validity of elections, in turn, encourages citizens to exercise their franchise and to fully participate in the democratic process. With the Consent Decree in place, the scope of the ability of the RNC to help prevent vote fraud and to promote voter confidence in our electoral system through legitimate poll watching programs is severely limited. Therefore, the Consent Decree should be vacated to allow the RNCjust like other political parties and organizationsto perform functions that will help eliminate the problems associated with vote fraud.
Also known as the Carter-Baker Report, this document is available at http://www1.american.edu/ia/cfer/report/full_report.pdf.

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CONCLUSION For the foregoing reasons, Amici encourage the Court to reverse the decision of the district court and to vacate the Consent Decree.
Respectfully submitted, s/ Karl S. Bowers, Jr. South Carolina Bar No. 16141* M. Todd Carroll South Carolina Bar No. 74000 HALL & BOWERS, LLC 1329 Blanding Street Columbia, S.C. 29201 Telephone: 803.454.6504 Facsimile: 803.454.6509 Counsel for Amici Curiae Karl S. Bowers, Jr., Hans A. von Spakovsky, Asheesh Agarwal, Robert N. Driscoll, Roger Clegg and Eric Eversole. *Pursuant to Local Appellate Rule 46.1(e), counsel for Amici certify that Karl S. Bowers, Jr. has filed an application for admission to this Court. Date: February 24, 2010
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CERTIFICATE OF COMPLIANCE 1. Pursuant to Third Circuit Rule 46.1, I certify that I am a member in good standing at the Bar of the United States Court of Appeals for the Third Circuit. 2. Amicis Brief complies with Federal Rules of Appellate Procedure 32(a)(7) and 29(c)-(d). This brief contains 3,017 words, excluding those parts of the brief exempted by Federal Rule of Appellate procedure 32(a)(7)(B)(iii), and has been prepared using a 14-point proportionally spaced typeface with serifs. 32(a)(5)-(6). 3. Ten hard copies of this brief were sent via Federal Express on this date to the Office of the Clerk, U.S. Court of Appeals for the Third Circuit, 21400 U.S. Courthouse, 601 Market Street, Philadelphia, PA 19106. This electronic brief was transmitted on this same date. 4. The text of this electronic brief and the hard copies are identical. 5. A virus check was performed using Trend Micro Worry Free Advanced, and found no viruses or worms. See Fed. R. App. P.
s/ Karl S. Bowers, Jr.
February 24, 2010

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PROOF OF SERVICE The undersigned hereby certifies that the foregoing Brief of Amici Curiae Karl S. Bowers, Jr., Hans A. von Spakovsky, Asheesh Agarwal, Robert N. Driscoll, Roger Clegg, and Eric Eversole in Support of Appellant Republican Party and in Support of Reversal of the District Courts Decision was filed on February 24, 2010, using the Courts Electronic Case Filing system, which causes a Notice of Docket Activity to be sent by email to all registered attorneys participating in this case. s/ Karl S. Bowers, Jr. February 24, 2010
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RNC Consent Order Amicus Brief-Filed

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RNC Consent Order Amicus Brief-Filed

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Case: 09-4615

Date Filed: 02/24/2010

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Also known as the Carter-Baker Report, this document is available at http://www1.american.edu/ia/cfer/report/full_report.pdf.

Date Filed: 02/24/2010

Date Filed: 02/24/2010

s/ Karl S. Bowers, Jr.

February 24, 2010

Date Filed: 02/24/2010

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