Republicans' Top Lawyer: G.O.P. Never Breaks Even "Spirit" of Election Laws

In a press conference call Saturday morning, the Republican National Committee's chief counsel sweepingly denied that the Republican Party has engaged in vote "caging" or other wrongdoing, and even appeared to deny that the G.O.P. is subject to "consent decrees" restricting its activities, despite the facts that the RNC has been subject to ongoing court supervision to prevent race-based voter suppression efforts since 1982, that it has been found in violation of that court's order at least once, and that party officials have been convicted of illegal vote suppression at least as recently as 2002.

On the same call, Republican representatives also argued that a correction made to a Michigan blog's story concerning Republican plans to challenge the registrations of voters whose homes are in foreclosure - a story which largely forms the basis of a Democratic National Committee lawsuit seeking to enjoin such challenges - is evidence that the entire story was fabricated. (Our timeline of the underlying news article, lawsuit, and earlier press conferences, with links, can be found here.)

RNC Denies Violating Election Laws, Even in "Spirit": The Democratic lawsuit, filed last Tuesday, asks for an injunction barring Republicans from issuing voter qualification challenges to Michigan voters whose homes are in foreclosure. To bolster the Democrats' claims, the lawsuit alleges that the Republican National Committee and related groups have engaged in similar, illegal voter suppression efforts in the past, and that they have entered into consent decrees - essentially, court orders agreed to by both the parties and the judge - promising not to do so in the future. The Democrats' Complaint alleges that:

24. Defendant Republicans have a long history of engaging in coordinated, systematic campaigns to suppress and deny the right to vote of American citizens. Those campaigns are often targeted at various racial groups, language minorities, or individuals of low or modest economic circumstances whom Defendant Republicans believe are unlikely to support them in political campaigns.

25. The instances of such voter-suppression tactics are many, but a few examples should suffice. In 1981, Defendant RNC, working with a state party and under the guise of a "Ballot Security Task Force," created lists of voters in predominantly African-American precincts and sent them letters in the mail. If a letter came back as undeliverable (approximately 45,000 letters), Defendant RNC compiled a challenge list to attempt to remove all such individuals from the voter rolls. The "Task Force" allegedly used off-duty sheriffs and police officers to watch polling places and posted signs to warn voters that the "Task Force" was patrolling and that it was a crime to violate the election laws. Following commencement of a lawsuit by the Democratic National Committee ("DNC"), Defendant RNC was subject to a consent decree prohibiting them from undertaking such activities where the purpose or significant effect of such activities is to deter qualified voters from voting. Consent Order, Democratic National Committee v. Republican National Committee, CA No. 81-3876 (D.N.J., entered Nov. 1, 1982).

26. Four years later, in 1986, Defendant RNC engaged in similar "ballot security" tactics in Louisiana, attempting to have 31,000 voters removed from the voter registration rolls simply because a piece of mail had been returned. As a result of these voter-suppression tactics, the RNC was again forced into court, and the New Jersey consent decree was re-opened and extended to prohibit the RNC, its agents, employees, and parties acting in concert from engaging in direct-mail campaigns targeted at voters on voter-registration lists to a) use the letters returned to compile vote challenge lists; b) make such challenges; and c) deter registered voters from voting. The consent decree prohibits Defendant RNC from engaging in such activities without prior approval by the court. Settlement Stipulation and Order of Dismissal, DNC v. RNC, CA No. 86-3972 (D.N.J. entered July 27, 1987).

27. In 2004, the Republican Party of Ohio, acting in concert with the Defendant RNC, engaged in the same tactics once again, compiling a list of more than 35,000 voters in the State of Ohio and seeking to have all 35,000 removed from the voter-registration rolls on the eve of the election. This voter suppression scheme led to mass chaos in the Ohio election process, with election officials across the State being diverted from activities essential to the orderly administration of elections to hold "hearings" on each of the 35,000 challenges - all of which were based on nothing other than the return of a single postcard (many of which were misaddressed). On the eve of the 2004 election, the United States District Court for the Southern District of Ohio found the Republican's mass challenge process and the resulting chaos a violation of the Due Process Clause and enjoined the conduct of these hearings. Miller v. Blackwell, 348 F. Supp. 2d 916 (S.D. Ohio 2004), aff'd, 388 F.3d 546 (6th Cir. 2004). Based on the involvement of the RNC in this challenge program, the District Court for the District of New Jersey also found that this mass challenge program violated the 1982 Consent Decree and enjoined the RNC, its officers and agents from using their challenger list, based on the returned mailings, in the November 2004 general election. Order, DNC v. RNC, CA No. 81-3876 (D.N.J., entered Nov. 1, 2004). The Court's order was stayed by the Third Circuit en banc, without opinion. 2004 U.S. App. LEXIS 22689 (3d Cir. 2004).

The central question in the Michigan lawsuit -- whether the Michigan Republican Party had plans to base voter challenges on lists of foreclosed homes, and should be barred from carrying out those plans -- is subject to honest debate. But the ancillary questions of whether the G.O.P. has engaged in vote suppression in the past, or whether court orders are in place barring it from engaging in vote suppression practices in the future, would seem to be fairly straightforward: those "historical" allegations are either true or they aren't. If they're true, then the DNC's fears about possible voter suppression next November in Michigan would seem more reasonable; it they aren't true, then a key element of the Democrats' lawsuit - that the Republicans have a historical pattern and practice of systematic voter suppression - would crumble.

Partly because I simply wanted to get at the truth, and partly to get a sense of whether the RNC sees its problem in Michigan as a straightforward legal dispute where some facts are admitted and others are honestly in dispute or, conversely, as a public relations problem to be contested across the board, I asked the RNC's chief election lawyer, Sean Cairncross, on Saturday whether at least the allegations of past voter suppression efforts were true:

The complaint refers to previous lawsuits and consent decrees. Has the Republican Party engaged in caging practices elsewhere in the past?

Cairncross' answer was surprisingly absolute: according to him, nothing in the Democrats' lawsuit, including both its allegations of past misconduct and consent decrees and its claims of Republican plans to engage in a type of "vote caging" in the future, is true at all:

"With respect to the complaint, it is, it is, completely baseless. But -- everything, everything that the RNC does, every, every action that we take, follows not only the letter but the spirit of the law."

Then the press office moderator, preventing my followup, moved quickly to the next question. The full audio of my question and Cairncross' answer is here:

Cairncross' response to my question is remarkable, because regardless of whether or not the Michigan allegations are true - again, a matter that's still being litigated and remains open to debate - it takes little effort to confirm that the Democrats' complaint is not "completely baseless." It's at least partly correct when it alleges that the RNC has broken the law in the past, and that it remains subject to court supervision to prevent efforts to intimidate and suppress the minority vote. Public-record court documents say so:

1982 New Jersey Consent Decree: In 1982, the RNC agreed to a binding court order signed by a federal judge in New Jersey in which it agreed to pay the DNC $1 in damages, refrain from certain kinds of illegal conduct, and submit to ongoing supervision by a federal judge. That consent decree includes the following agreements, which give a pretty good idea of the conduct at issue in that case:

2. The RNC and RSC [Republican New Jersey State Committee] ... agree that they will in the future, in all states and territories of the United States:

(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; ...

(d) refrain from giving any directions to or permitting their employees ... 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 social 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;

(f) refrain from attiring or equipping agents, employees or other persons or permitting their agents or employees to be attired or equipped in a manner which creates the appearance that the individuals are performing official or governmental functions, including, but not limited to, refraining from wearing public or private law enforcement or security guard uniforms, using armbands, or carrying or displaying guns or badges except as required by law or regulation, in connection with any ballot security activities; and

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

In other words, the allegations in para. 25 of the Democrats' Michigan Complaint are more or less true. To be fair, the 1982 consent decree also contains a "boilerplate" disclaimer of any wrongdoing - but as a practical matter it's hard to believe the RNC, during the heady days at the start of the Reagan era, was willing to subject their election activities to decades of court supervision unless the Democrats had established a bombproof case against them. What's more, as a matter of both law and practice courts are reluctant to sign injunctions without solid evidence suggesting that they're actually necessary and require the judge's ongoing involvement, especially in cases of national import like that one. There's little question but that there was some fire responsible for the smoke in the New Jersey case that led to the consent decree.

1987 Modification of Consent Decree: In 1987, after new wrongdoing allegations arose, the RNC, DNC and judge modified the earlier order to forbid the RNC from engaging in any kind of "ballot security" efforts unless it disclosed its plans to the DNC at least 20 days before the election and received approval from the court ahead of time. The stated reason for the modification? To prevent the use of "racial or ethnic criteria in connection with ballot integrity, ballot security or other efforts to prevent or remedy suspected vote fraud."

1990 Finding of Republican Violation: In 1990, the same federal judge in New Jersey found the RNC to have violated the earlier order:

The Republican National Committee, by failing to include in ballot security instructional and informational materials guidance to state parties on unlawful practices under the consent decree or copies of such decree for their review, has violated said decree and shall in all such materials include such guidance or copy of the decree.

Even apart from the consent decree, it's nonsensical to assert that the Republican Party never violates election laws. There are simply too many instances of overeager individuals -- in every election, from every party, not just the G.O.P.-- going off-reservation. For instance, in New Hampshire's 2002 Senate race, three Republican Party officials were convicted of breaking federal law by using a "phone bank" to jam the telephones lines of Democratic Party and firefighters' union offices, interfering with the Democrats' "get out the vote" efforts and helping elect Republican John Sununu in a close race. One of those officials, Allen Raymond, identified a national Republican Party official as the source of the idea. Raymond served three months in jail for his crime.

An Important Democrat Responds: On an Obama campaign conference call later Saturday, I asked for a response from U.S. Senator Sherrod Brown, the former Secretary of State in Ohio (where his successor, Republican Kenneth Blackwell, supported a 2004 Republican attempt to challenge 35,000 mostly minority voters). Sen. Brown responded at length, even tying the election law dispute to the financial meltdown last week:

I live in a state where there were significant efforts to suppress the voters... in 2004. *** I remember the Ballot Security Task Force in New Jersey, where Republican Party operatives, acknowledged later by [Republican campaign consultant and Mike Huckabee's campaign manager in this election] Ed Rollins, ... stationed people at the polls dressed with armbands saying "Ballot Security Task Force," went to polling places where there were large numbers of minority voters and asked them for ID, illegally doing that, but by the time the police came to run them off it clearly had - major suppression of the vote had occurred.

I saw it in, it happened in Louisiana... several occasions after that, various kinds of ballot suppression, including sending out letters to people telling them election day had been changed ... The Secretary of State in Ohio [Kenneth Blackwell] kept changing the rules leading up to the vote in 2004 in Ohio. There's numerous examples.

It's what they do as a party, as an institution.... They know they can't win this year on issues, [so] they try to shift it to personalities and who knows what they'll try to do beyond that. *** The direction McCain and Bush want to take the country on privatization ... that's what they want to continue, and they'll do anything to win so they can continue those policies."

Here's the audio of my question and Brown's response:

Analysis: Of course some Republican Party representatives, overzealous in their pursuit of victory, have pushed the boundaries of legal and ethical conduct past the breaking point. Some Democrats, Libertarians, and Greens almost certainly have done the same. And while most of the Republican Party's "vote fraud prevention" activities are intended less to fight actual fraud than to suppress the Democratic vote -- for instance, the RNC website supposedly documenting horrendous cases of Democratic misconduct contains exactly one instance from Michigan, which, while deplorable, isn't statistically relevant enough to warrant wasting campaign resources on systematic fraud prevention efforts -- it's also true that most of those efforts fall, if only barely, within the confines of the law.

So Cairncross could have answered my question Saturday with at least colorable credibility simply by saying that some Republicans have indeed acted irresponsibly in the past, as have some Democrats; that those were isolated cases; that there were indeed court orders, entered thirty years ago, that the Party voluntarily submitted to because it has no objection to following the laws and is willing to be completely transparent about its efforts to do so; that in this election the RNC is doing everything it can to follow the letter and spirit of the law; and that it didn't do anything wrong in Michigan.

But Cairncross didn't answer honestly, which is strange for someone with his intelligence and credentials (he holds degrees from American University, N.Y.U. and Cambridge, is a former litigator, and has been an RNC lawyer since 2004). Even stranger is the fact that his answer seems to have been lifted almost verbatim from the press release announcing his appointment as chief counsel last year, when the Chair of the RNC (and Cairncross' boss), Mike Duncan, said:

"In order to serve this Party and this nation effectively, the RNC must always make sure that it follows not just the letter, but the spirit of the law. The legal team we are announcing today will do exactly that.

So why would a smart young lawyer, sincerely offended by false allegations, willing to tell the truth about things his party did long before he joined their team, superbly trained in the arts of rhetoric and persuasion -- why would that fellow stumble when asked about provable historical facts, and fall back instead on feel-good language from the public relations release that announced his own promotion? It wasn't that hard a question to answer for someone willing to simply admit the truth and put it in context. But maybe, when someone sets out to obfuscate instead of to be honest, it becomes difficult to know when to stop playing games.

The Democrats' lawsuit in Michigan may fail -- in fact, I'm betting that the judge there sees no need to issue the injunction the Democrats are requesting, since the Republicans would be insane to follow through on a "foreclosure roll" voter-suppression scheme now even if they had planned one in the first place. But when a Republican lawyer can't even bring himself to admit relatively harmless old truths that anyone with an Internet connection can confirm for themselves, it's pretty likely that -- just as there was in New Jersey back in 1982, in Florida in 2000, in New Hampshire in 2002, and in Ohio in 2004 -- there's at least some fire smoldering underneath all the smoke that's drifting across Macomb County, Michigan these days.

The Original Issue Raised During the RNC Press Conference: Correction by The original purpose of Saturday morning's press conference call was to allow the RNC representatives to highlight what they termed a "retraction" by the Michigan Messenger blog of "key parts of their initial story."

In the story that led to the Democrats' lawsuit in Michigan ("Lose Your House, Lose Your Vote"), Michigan Messenger quoted James Carabelli, a Republican party official in Macomb County, Michigan, as saying that the local party planned on using foreclosure lists as a basis for challenging voters' residency and right to vote on Election Day: "We will have a list of foreclosed homes and will make sure people aren't voting from those addresses." That story is what led several Democratic entities, including the Obama campaign, to bring their lawsuit asking the court to enjoin any use of foreclosure lists in voter challenges.

The Michigan Messenger story also suggested that similar voter disqualification efforts were underway elsewhere. Its original text, cached by Google on September 12, reads as follows:

Vote suppression: Not an isolated effort - Carabelli is not the only Republican Party official to suggest the targeting of foreclosed voters. In Ohio, Doug Preisse, director of elections in Franklin County (around the city of Columbus) and the chair of the local GOP, told The Columbus Dispatch that he has not ruled out challenging voters before the election due to foreclosure-related address issues. (Emphasis added.)

Unlike Carabelli's statement, which the Messenger still asserts was made directly to its own reporter and was accurately reported, the Messenger's description of the Ohio Republican official's statement was secondhand, based on a July story in an Ohio newspaper. While the Ohio paper's story did discuss G.O.P. efforts to disqualify voters there based, in part, on questioning the residency of previous owners of foreclosed homes, the specific statement by Preisse seems to have been a more general statement about trying to disqualify voters in general.

Thus, the Messenger's article appears to mischaracterize what the other newspaper wrote. Accordingly, in a correction issued on its home page Friday evening, the Messenger noted its mistake:

While the ongoing dispute in Franklin County does concern voter challenges that are based, in part, on the eligibility of foreclosed homeowners, Priesse's comments to the Dispatch did not specifically address the issue of foreclosed homeowners. We have revised the article accordingly.

As corrected, the Michigan Messenger's story now ends as follows:

Doug Preisse, a member of the board of elections in Franklin County and the chair of the local GOP, said he has not ruled out challenging voters before the election.

In Saturday's conference call, Cairncross and RNC Communications Director Danny Diaz described the Messenger's correction as a retraction; speculated that Messenger staff were "working on [a retraction of the balance of the article] frantically as we speak;" predicted that the Messenger article would be retracted by the end of next week; and called the Obama campaign in general and Obama chief counsel Bob Bauer in particular "sophomorically reckless," "careless," and "desperate" for making "cheap, baseless accusations" based on the reporting of a "liberal blog."

Shorter RNC conference call: kill the Messenger. Watch for a possible defamation suit against the M.M. next week to help make the RNC's predictions of a retraction come true.

You can hear the entire RNC conference call from Saturday morning here: