As the presidential race lumbers toward the finish line, President Donald Trump's campaign to cast doubt on the integrity and reliability of the election is picking up speed.
In September, Donald Trump Jr., the president's son, claimed on social media — without any evidence — that Democrats planned to "add millions of fraudulent ballots" to "steal" the election. To prevent this imaginary threat, he called on "every able-bodied man [and] woman to join Army for Trump's election security operation." Meanwhile, at the first presidential debate, Trump Sr. repeated his charge that Democrats would "cheat" in the election and urged his loyal followers to "go into the polls and watch very carefully."
These calls for action from the Trump family support an ongoing effort by the GOP. In May, the Republican National Committee announced its own massive program to monitor polling places and challenge ballots cast by voters its representatives deem suspicious. The plan, backed by $20 million, called for the recruitment of 50,000 private citizens to serve as "poll watchers" across 15 battleground states. The RNC hasn't revealed how many of these "watchers" have actually been recruited, but the operation is well underway, with members monitoring early-voting sites and drop boxes for mail-in ballots.
Republicans' efforts will surely spike on Election Day, with a strong potential for electoral disruptions and civil disturbances, if not outright violence. "There's going to be lots of watchers, lots of cameras and lots of attorneys all over the country," predicted the head of the GOP's county organization in suburban Philadelphia. "It's going to be chaotic."
This RNC effort is remarkable in many ways, starting with the simple fact that it's possible in the first place.
For the past 40 years, the party organization has been bound by a “consent decree” secured in federal court in 1982.
For the past 40 years, the party organization has been bound by a "consent decree" secured in federal court in 1982. As a result, the GOP was barred from engaging in these kinds of "election security" campaigns, which seem to be little more than efforts at voter intimidation and election interference.
The decree had its origins in the 1981 gubernatorial race in New Jersey. Widely understood as the first real referendum on the Reagan administration, the contest drew intense attention from both parties.
To support the campaign of Republican nominee Tom Kean Sr., the RNC dispatched political operative John A. Kelly to the state. Kelly — who was soon revealed to have fraudulently claimed to have an undergraduate degree from Notre Dame, a law degree from Fordham, a past role in law enforcement and an official position with the Fraternal Order of Police — saw his mission as exposing "voter fraud." He launched a grandly titled "National Ballot Security Task Force" to identify suspicious Democratic voters and monitor selected polling places.
On Election Day, off-duty police officers and sheriff's deputies hired by Kelly's group were equipped with revolvers, two-way radios and official-looking armbands, and they were sent to predominantly Black and Hispanic polling places. "WARNING," their posters announced in red letters, "THIS AREA IS BEING PATROLLED BY THE NATIONAL BALLOT SECURITY TASK FORCE. IT IS A CRIME TO FALSIFY A BALLOT OR TO VIOLATE ELECTION LAWS." A Democratic City Council member from Newark complained that guards were operating "like the Gestapo" there, popping into polling places in small groups, looking through registration books and challenging voters.
The election proved to be incredibly close. After a recount of the ballots from those who had been allowed to vote, Kean squeaked out an incredibly slim margin of victory of 1,797 votes out of 2.3 million cast. Meanwhile, according to Democratic officials, task force members had challenged more than 45,000 voters.
Accused of voter intimidation, Republican officials argued that they had no choice, given their belief that Democrats would cheat. "Anyone opposed to ballot security obviously must be supportive of election fraud," RNC Chairman Richard Richards asserted. "We would have been cheated out of that race if we hadn't been alert." Kean likewise waved away charges of intimidation, saying Republicans just wanted to make sure "that ballots suddenly don't appear from some basement hall in Jersey City or Camden."
Democrats responded by suing the Republicans in federal court. The lawsuit sought $10 million in damages "for the deprivation of the right to vote" and an injunction preventing Republicans from trying the same thing in other elections. It also demanded that Republicans produce internal correspondence and documents about the task force to demonstrate its illegal intent. For the suit, Democrats provided affidavits from 80 voters who said they had either left the polls themselves or seen others do so due to the presence of the armed guards. One of them, an African American woman in Trenton, reported that task force members stopped her, demanded to see her voter registration card and then turned her away when she did not produce it.
Rather than risk embarrassment during a trial or an adverse ruling after it, the RNC agreed to settle the case with a consent decree. The consent decree, an agreement between the two parties, required the national and state GOP to seek court approval of any future "ballot security" programs, subject to being found in contempt if they ever engaged in similar practices.
Over the ensuing decades, the consent decree was steadily expanded and extended, as Democrats provided enough evidence of voter intimidation and electoral interference to convince the court that it was still needed. Over the last decade, the RNC remained on its best behavior, studiously avoiding the appearance of any connection with "ballot security" campaigns. When Mike Pence announced in the 2016 race that "the Trump campaign and the Republican National Committee are working very, very closely with state governments and secretaries of states all over the country to ensure ballot integrity," the RNC declared that Pence didn't know what he was talking about. Its lawyers dismissed Pence's "incorrect assumptions" in court filings, and Pence himself had to swear he was wrong.
A federal judge finally allowed the consent decree to expire in late 2017, believing that the issue had been put to rest.
A federal judge finally allowed the consent decree to expire in late 2017, believing the issue had been put to rest. The 2020 election will therefore be the first presidential race in 40 years without the consent decree in place.
At a private meeting with Republican officials last fall, Justin Clark, a senior lawyer with the 2020 Trump campaign, noted that this was "a huge, huge, huge, huge deal." The RNC can now coordinate Election Day operations with various campaigns and committees. As a result, Clark said, Republicans would have "a much bigger program, much more aggressive program, a better funded program" to fight "voter fraud" than ever before.
Of course, rampant voter fraud remains a myth. As the Brennan Center for Justice at New York University Law School has cataloged here, countless studies by journalists, scholars and election experts have shown that the current claims about millions of fraudulent votes, cast either in person or by mail, are simply baseless. Even Trump's own presidential commission on the issue unceremoniously disbanded in early 2018 after finding no evidence of widespread fraud.
But in 2020, as in 1981, the realities of voter fraud don't matter. Republicans are insisting that their very real efforts at voter intimidation are warranted because they insist that Democrats have done or will do or possibly might do something much worse. Their basic insecurity, unfounded in fact but nevertheless very real to them, is what threatens the security of our elections.