The opinion of the court was delivered by: Debevoise, Senior District Judge
This matter comes before the Court on a motion by Defendant, the Republican National Committee ("RNC") to vacate or modify a Consent Decree entered into by the parties as part of a settlement for voter intimidation claims brought by the Plaintiff, the Democratic National Committee ("DNC"). The Decree, which was entered on November 1, 1982 and modified on July 27, 1987, imposes various requirements on any "ballot security" initiatives undertaken by either the RNC or the New Jersey Republican State Committee ("RSC"). Such initiatives are defined in the Decree as any efforts to prevent or remedy voter fraud.
In its pending request to modify or vacate the Consent Decree, the RNC argues that intervening changes in state and federal election laws have significantly increased the danger of voter fraud, thus making it essential that it be allowed to carry out ballot security initiatives without complying with the requirements of the Decree. Additionally, the RNC claims that the Consent Decree (1) has been interpreted in a manner that impermissibly broadens its scope, (2) is no longer necessary to prevent voter intimidation, and (3) is contrary to the public interest because it imposes requirements only on the RNC, thereby creating an imbalance that adversely affects the competition between political parties necessary to ensure fair elections. In response to those arguments, the DNC contends that the RNC exaggerates the danger of voter fraud, which it claims is outweighed by the ongoing threat that Republican political groups will engage in voter intimidation. As proof that the protections contained in the Consent Decree remain necessary, the DNC points to decisions made pursuant to that agreement by this Court, which found that the RNC had engaged in impermissible voter challenges as recently as the 2004 election.
Both parties submitted mountains of documentary evidence in support of their arguments. The RNC produced thousands of pages of newspaper articles and other sources documenting alleged incidents of voter fraud over the past 27 years, while the DNC did the same with respect to voter intimidation. The Court held an evidentiary hearing on May 5 and 6, 2009, at which the parties were permitted to make oral arguments and call witnesses in support of their claims. Following that hearing, the parties were each permitted to file an additional brief.
For the reasons set forth below, the Court finds that neither changed factual circumstances nor developments in state and federal election laws justify vacating the Consent Decree, but modification is required. Voter intimidation presents an ongoing threat to the participation of minority individuals in the political process, and continues to pose a far greater danger to the integrity of that process than the type of voter fraud the RNC is prevented from addressing by the Decree. However, while the Court finds that there is an ongoing need for the Consent Decree, the manner in which the RNC has interpreted its terms has rendered the Decree "unworkable" by precluding the RNC from engaging in several activities that are unrelated to voter fraud and do not have a disparate impact on minority voters. Additionally, the fact that the parties did not include a date on which the Consent Decree will terminate has created an inequitable situation in which the RNC may be subject to the requirements of that agreement in perpetuity. Therefore, the Decree will be modified in five ways: (1) as consented to by the DNC, the Consent Decree will be clarified to allow enforcement only by the parties to that agreement, (2) the time period by which the RNC must inform this Court of any proposed ballot security measures ("preclearance provision") will be shortened from 20 to 10 days, (3) the term "ballot security" will be clarified to include only efforts that are aimed at preventing potential voters from casting a ballot, as opposed to programs meant to ensure the smooth functioning of the electoral process or increase the number of people participating therein, (4) the term "normal poll watch functions" will be defined in order to provide notice of the types of activities that do not fall under the Consent Decree, and (5) a termination date will be added so that the Consent Decree will expire eight years after the date of this ruling unless, at any point before that date, the DNC is able to prove by a preponderance of the evidence that the RNC has violated the Decree, in which case the termination date will be extended to eight years from the date of that violation.
The 27-year history of the Consent Decree that is the subject of this ruling began when, during the 1981 New Jersey gubernatorial election, the RNC and RSC engaged in a ballot security program that the DNC claimed targeted minority voters in an effort to intimidate them in violation of the Voting Rights Act ("VRA") of 1965, 42 U.S.C. §§ 1971, et seq., and the 14th and 15th Amendments to the Constitution. As part of that program, the RNC allegedly created a list of persons to be challenged at the polls by mailing sample ballots to individuals living in precincts where the majority of the registered voters were members of ethnic minorities. The names of voters registered at an address from which a sample ballot was returned as undeliverable were then added to a list that the RNC asked to have removed from New Jersey‟s voter rolls. In addition to the challenge list, the RNC allegedly intimidated voters on Election Day by posting off-duty sheriffs and policemen -- some of whom were wearing equipment normally associated with law enforcement personnel such as two-way radios and firearms -- at polling places in minority precincts. The officers involved in the program wore armbands emblazoned with a seemingly-official title: "National Ballot Security Task Force."
Faced with intense political pressure and scrutiny from local media, the RNC chose to settle the 1981 suit by entering into the Consent Decree. Pursuant to that settlement, the RNC agreed that "in the future, in all states and territories of the United States," it would:
(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;
(b) in the event that [it] produce[s] or place[s] any signs which are part of ballot security activities, cause said signs to disclose that they are authorized or sponsored by the [RNC];
(c) refrain from giving any directions to or permitting their agents or employees to remove or deface any lawfully printed and placed campaign materials or signs;
(d) refrain from giving any directions to or permitting their employees to campaign within restricted polling areas or 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 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 such districts that have a substantial proportion of racial or ethnic [minority] populations shall be considered relevant evidence 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 1987, the DNC sued the RNC for alleged violations of the Consent Decree during the previous year‟s Congressional elections in Louisiana. Those purported violations, like the ones in the 1981 New Jersey gubernatorial election, involved the compilation of a voter challenge list by sending letters to African-American voters and recording the names of individuals for whom the mailing was undeliverable at the address where they were registered to vote. While defending a suit brought in Louisiana state court by several of the voters on the list, the RNC responded to a discovery request by producing a memo from its Midwest Political Director to its Southern Political Director, in which the former stated that "I would guess 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." See Thomas Edsall, Ballot Security Effects Calculated: GOP Aide Said Lousiana Effort "Could Keep the Black Vote Down," Wash. Post, Oct. 24, 1986 at A1. After those statements came to light, the DNC -- which was not a party to the Louisiana state action -- instituted an action in this Court alleging that the RNC‟s ballot security activities were racially motivated, and thus violated the Consent Decree.
As in the prior suit, the RNC chose to settle the claims against it. In exchange for the DNC dismissing its claims, the RNC agreed to a modification of the 1982 Consent Decree. That modification defined "[b]allot security" efforts to mean "ballot integrity, ballot security or other efforts to prevent or remedy vote fraud," and added the preclearance provision, which prohibits the RNC from engaging in such efforts unless they are approved ahead of time by this Court by stating:
[T]he 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 Consent Order and applicable law. Applications by the RNC for determination of ballot security programs by the Court shall be made following 20 days notice to the DNC, which notice shall include 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.
As an exception to the preclearance requirement, the modification agreed to by the parties stated that:
[T]he RNC may deploy persons on [E]lection [D]ay to perform normal poll watch functions so long as such persons do not use or implement the results of any other ballot security effort, unless the other ballot security effort complies with the provisions of the Consent Order and applicable law and has been so determined by this Court.
B. Subsequent Enforcement Actions
Since the modification of the Consent Decree in 1987, the DNC has brought two suits alleging violations of that agreement on the part of the RNC. In 1990 it instituted an action alleging that the RNC had violated the Consent Decree by participating in a program in which the North Carolina Republican Party ("NCRP") sent 150,000 postcards to residents of predominantly African-American precincts in that state. The postcards 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," and falsely stated that voters must have lived in the precinct in which they cast their ballot for at least 30 days prior to the election. In its decision, the Court found that the DNC had "failed to establish that the [RNC] conducted, participated in, or assisted in" the program.*fn1 It ruled, however, that the RNC, "by failing to include in ballot security instructions and informational guidance to state parties on unlawful practices under the consent decree or copies of such decree for their review, ha[d] violated said decree and shall in all such materials include such guidance or copy of the decree" in the future.
On November 3, 2008, the DNC brought a second action, in which it alleged that the RNC had violated the Consent Decree by hiring private investigators to examine the backgrounds of various New Mexico voters in preparation for challenging those individuals‟ right to cast a ballot in that year‟s election. As redress for that purported violation, the DNC requested a preliminary injunction ordering the RNC to refrain from using any information gathered by the investigators or carry out any ballot security initiatives in New Mexico during the election, which was scheduled to take place the following day. The Court held oral arguments on the petition, at which the RNC produced a sworn affidavit from the vendor accused of hiring the private investigators testifying that they had not been used for the purposes of gathering information or preparing for ballot security efforts. That testimony led the Court to conclude that, while there may have been misconduct on the part of the New Mexico Republican Party or other political operatives, the RNC did not direct or participate in the ballot security measures at issue, and therefore had not violated the Consent Decree.*fn2
A third enforcement action -- brought by an intervenor during the week before the 2004 general election -- is also relevant to the question of whether the Consent Decree should be modified or vacated. On October 28, 2004, an African-American resident of Cleveland, Ohio named Ebony Malone filed a Complaint alleging that the RNC had violated the Consent Decree by participating in the compilation of a voter challenge list that included 35,000 predominantly-minority individuals from that state. As was the case in the actions that led to the initial Consent Decree and the 1987 modification, the list was assembled by sending letters to registered voters in precincts with a high concentration of minorities, in this case inner-city areas in Cleveland, and recording the names of those voters for whom the letter was returned as undeliverable. An initial letter was sent by the RNC on August 10, 2004, while a second mailing was issued by the Ohio Republican Party ("ORP") on September 9th of that year. Ms. Malone was a recently-registered voter and was included on the challenge list.
Ms. Malone contended that the challenge list posed a threat to her right to vote. Moreover, she asserted that any program involving challenges to the individuals on the list on Election Day would result in the disenfranchisement of other minority voters by overwhelming Ohio election officials and clogging the polls. On the basis of those claims, she requested that the Court issue a preliminary injunction barring the RNC and any state organizations with which it was cooperating from carrying out poll challenges using the list.
The Court held an evidentiary hearing on the morning of November 1, 2004, at which it heard arguments relating to whether a preliminary injunction should be issued. At that hearing, the DNC appeared in support of Ms. Malone. The RNC opposed Ms. Malone‟s request for a preliminary injunction on several grounds. As a threshold issue, it argued that Ms. Malone‟s suit was non-justiciable because irregularities in her registration would render her subject to challenge by the Ohio Board of Elections regardless of whether the RNC or ORP engaged in a separate challenge. The RNC also claimed that it had complied fully with the Consent Decree, asserting that the potential challenge to Ms. Malone fell within the "normal poll watch functions" allowed by that agreement. Finally, it contended that any challenge would be carried out by the ORP -- which was not subject to the Decree -- and an injunction issued by this Court would therefore be ineffective in redressing Ms. Malone‟s claims.
At the conclusion of the hearing, the Court rejected the RNC‟s arguments and issued an Order in which it (1) barred the RNC from using the list to carry out voter challenges and (2) directed the RNC to instruct its agents in Ohio not to use the list for such purposes. In doing so, the Court found that the RNC had violated both the procedural and substantive provisions of the Consent Decree. In its Opinion, which was read into the record at the conclusion of the hearing, the Court first rejected the RNC‟s argument that Ms. Malone‟s claims were non-justiciable by ruling that she would suffer irreparable harm if forced to endure multiple challenges to her eligibility, as such challenges may delay her efforts to cast a ballot or result in congestion at the polling place that would prevent other voters from doing so. It then held that:
[T]he RNC violated the Consent Decree. It engaged in a ballot security effort.. [F]rom at least the time of the RNC‟s August 10, 2004 letter until recent days the RNC participated with the Ohio Republican Committee in the devising and implementation of the program.
Procedurally, the RNC is in clear violation inasmuch as it failed to obtain [a] determination that the ballot security program complies with the provisions of the Consent Decree. Further, the program violates the substantive provisions of the Decree. It undertook ballot security activities in polling places or election districts where the racial composition in such districts [factored] in the decision to conduct. such activities there, and where the purpose or significant effect of such activities is to deter qualified voters from voting. The RNC‟s original mailing and the Ohio State Committee‟s September 9th mailing were directed to the counties having the State‟s major cities and largest concentration of minority voters.
Immediately after this Court issued its ruling, the RNC filed an emergent application to the Court of Appeals for the Third Circuit requesting a stay of the Order. A panel of the Court of Appeals met that afternoon and worked into the evening to address the application. With fewer than eight hours remaining before the polls opened in Ohio, the panel issued an Opinion and Order denying the RNC‟s application for a stay and affirming this Court‟s decision. In doing so, it stated that "we believe there is ample support for the factual findings of the District Court," and noted that "emails between the RNC and. Ohio Republican Party show collaboration and cooperation between the RNC and ORP."
Following that ruling, the RNC petitioned for rehearing en banc. On the morning of Election Day, November 2, 2004, the Court of Appeals granted that petition, vacated its earlier ruling, and stayed this Court‟s judgment pending a decision on rehearing. Before the case could be reheard, though, Ms. Malone cast her ballot without being challenged. Based on that development, the Court of Appeals dismissed the appeal as moot. In doing so, it did not address the merits of this Court‟s determination that the RNC had violated the Consent Order. Thus, the substantive merits of the Court‟s ruling have never been refuted, and its factual determination that the RNC engaged in conduct prohibited by the Consent Order remains undisturbed.
D. Motion to Vacate or Modify the Consent Decree
On November 3, 2008, shortly after the Court denied the DNC‟s Motion for a Preliminary Injunction based on the alleged violations in New Mexico, the RNC submitted the pending Motion to Vacate the Consent Decree. In its opening and reply briefs, the RNC argued that it should be allowed to conduct ballot security initiatives without complying with the Decree because the enactment of various statutes since the Decree was last modified in 1987 -- including (1) the National Voter Registration Act of 1993 (the "Motor Voter Law"), 42 U.S.C. §§ 1973gg, et seq., (2) the Bipartisan Campaign Reform Act of 2002 ("BCRA"), 2 U.S.C. §§ 431, et seq., and (3) the Help America Vote Act of 2002 ("HAVA"), 42 U.S.C. §§ 15301, et seq. -- has increased the danger of voter fraud and decreased the risk of voter intimidation. Additionally, it contended that the Consent Decree (1) improperly extends to conduct that was outside the scope of the Complaints in the actions which led to its enactment, (2) has been interpreted in a broad manner that undermined the expectations of the parties at the time the 1982 and 1987 settlements were entered, and (3) violates the First Amendment by restricting communications between the RNC and state parties relating to ballot security initiatives.
In its brief in opposition to the Motion to Vacate, the DNC argued that, despite the statutes pointed out by the RNC, the danger of voter intimidation remains greater than that of voter fraud. In doing so, it noted several recent incidents in which minority voters were reportedly subjected to illegal and abusive ballot security initiatives by Republican operatives, and pointed to several occasions during the past 15 years in which Republicans made allegations of voter fraud that were later revealed to be false. Additionally, the DNC argued that the conduct prohibited by the Consent Decree -- the implementation of ballot security initiatives in minority precincts as a means of deterring qualified voters from casting their ballots -- remains illegal, and any action modifying or vacating the Consent Decree would give the RNC an opportunity to return to the very practices that agreement is meant to prevent. With respect to the RNC‟s argument that the Consent Decree extends to conduct that was not at issue in the suits that led to its adoption and modification, the DNC set forth several precedents -- including a case from the Supreme Court -- holding that a party may enter into a settlement in which it consents to broader relief than the court may have granted if the case had been tried.
In keeping with the requirement that a district court hold an evidentiary hearing before modifying a consent decree in such a manner as to remove requirements previously imposed, Mayberry v. Maroney, 529 F.2d 332, 336 (3d Cir. 1976), the Court heard two days of oral arguments on May 5 and 6, 2009. During that hearing, both parties were allotted time for opening and closing statements and were allowed to call witnesses in support of their respective arguments. The arguments articulated by the parties largely restated those in their briefs, and will not be repeated here. The relevant testimony of the witnesses is summarized below. For the sake of brevity, the Court will not revisit the portions of that testimony in which witnesses simply restated arguments laid out in the parties‟ briefs or opined on matters not directly pertinent to today‟s decision.
The only witness called by the RNC in support of its Motion was Thomas Josefiak, an expert in election law who served from 1985 until 1992 as a Commissioner of the Federal Election Commission ("FEC") after being appointed to that post by President Ronald Reagan. On leaving the FEC, Mr. Josefiak worked as Special Counsel to the RNC until 1995, at which time he assumed the duties of General Counsel to the Committee. He served in that capacity from 1995 until 2004 and again from 2005 until 2008, taking a brief interlude to work as General Counsel to the Committee to Re-Elect President George W. Bush from 2004-2005.
Mr. Josefiak‟s testimony largely echoed the arguments set forth in the RNC‟s briefs. He first stated as a general matter that he was familiar with the Consent Decree and that the RNC had made efforts throughout his tenure to inform state parties of that agreement‟s contents and requirements. In outlining the RNC‟s efforts to comply with the Decree, Mr. Josefiak focused particularly on the preclearance requirement added pursuant to the 1987 modification. He argued that the Consent Decree‟s requirement that the RNC serve 20 days notice and obtain the approval of this Court before engaging in any ballot security initiatives is inequitable and disadvantages the RNC. First, Mr. Josefiak stated that, due to the preclearance requirement and other provisions in the Consent Decree, the RNC does not coordinate with state and local party committees on Election Day efforts such as voter turnout drives or poll watching activities. (1 Hr‟g Tr. 94:7-95:17, May 5, 2009.) Although he admitted that the Consent Decree allows the RNC to engage in "normal poll watch functions," Mr. Josefiak claimed that, since those functions are not defined by the Decree, it is difficult to determine when poll watching crosses into the realm of ballot security. Therefore, the RNC chooses to refrain entirely from participating in Election Day efforts. (Id.)
Even if the RNC tried to engage in poll watching or ballot security initiatives, Mr. Josefiak contended that it would in all practical terms be unable to do so because the Consent Decree‟s requirement that it serve this Court with 20 days notice of such initiatives makes it impossible for the Committee to effectively allocate its resources on Election Day. In a Presidential election, for example, the RNC may believe at the time it seeks preclearance that Missouri will be a hotly-contested state, only to find based on polls completed in the days just before the election that the margin separating the two candidates has widened, and the poll watchers that were to have been deployed in that state could be put to better use elsewhere. See (Id. at 96:15-97:14.)
In addition to testifying about the RNC‟s efforts to comply with the Consent Order, Mr. Josefiak opined as an expert on the danger of voter fraud. He argued that voter fraud remains a serious issue, especially in light of the close margins by which many elections have been decided over the past 15 years. In support of that claim, he noted a report issued in 2005 by the Carter-Baker Commission on Federal Election Reform, a bipartisan panel headed by former President Jimmy Carter and former Secretary of State James Baker. In that report, which was titled "Building Confidence in U.S. Elections," the Commission stated:
While fraud is difficult to measure, it occurs. The U.S. Department of Justice has launched more than 180 investigations into election fraud since October 2002.
These investigations have resulted in charges for multiple voting, providing false information on their felon status, and other offenses against 89 individuals and in convictions of 52 individuals. The convictions related to a variety of election fraud offenses, from vote buying to submitting false voter registration information and voting-related offenses by non-citizens. (RNC Hr‟g Ex. 26 at 45.)
Additionally, Mr. Josefiak cited the report of a Federal Bureau of Investigation ("FBI") task force investigating allegations of voter fraud in Wisconsin during the 2004 election. In its preliminary findings, the task force found over 100 individuals had voted more than once in the election, and more than 200 ineligible felons had voted. (RNC Hr‟g Ex. 29 at 2.) Additionally, the report stated that approximately 65 non-existent voters were registered by individuals participating in registration drives that were paid based on the number of voters they signed up, but specifically stated that those fictitious identities were not used to cast a ballot. (Id. at 3.) Mr. Josefiak noted in his testimony that the number of individuals convicted of such offenses is often a poor measure of the extent of voter fraud because prosecutors must prove that each defendant knew that his or her activities were illegal and, despite that knowledge, willfully violated the law. (1 Hr‟g Tr. 91:21-92:6.) He then went on to discuss other incidents in which voter fraud allegedly took place, most notably in Florida and Missouri during the 2004 Presidential election. (Id. at 92:8-93:19.) After doing so, he again stated that the practical effect of the Consent Decree has been to preclude the RNC from engaging in initiatives aimed at combating voter fraud. (Id. at 93:20-22.)
In his capacity as an expert witness, Mr. Josefiak also gave testimony on voter registration trends and changes to voting laws since the Consent Decree was enacted in 1982. In doing so, he noted two charts created using data compiled by the United States Census Bureau. The first showed that, while there was a 28.1 percent increase in the total number of registered voters between 1982 and 2006, there was an increase of only 13.2 percent in the number of new voters that were classified as "white." In contrast, there was a 41.6 percent increase in "black" voters, and a 201 percent increase in those categorized as "hispanic."*fn3 (RNC Hr‟g Ex. 6.) The second chart, which included information on the number of individuals from each ethnic category that actually voted in the 1982 and 2006 elections, showed a similar trend: the number of "white" voters increased by 7.8 percent, while the number of "black" and "hispanic" voters went up 31.1 and 152 percent, respectively. (RNC Hr‟g Ex. 7.)
According to Mr. Josefiak, the relatively-greater increases in "black" and "hispanic" registration between 1982 and 2006 were significant insofar as the RNC was aware of the trend, and sought to ingratiate itself with those communities in an effort to garner their votes. Moreover, the increase in minority registration and voter turnout during those periods, according to Mr. Josefiak, gave the RNC a strong incentive to refrain from engaging in any form of voter intimidation aimed at members of those communities. He testified that doing so "would be political suicide," and asked rhetorically, "[w]hy would the RNC make concerted efforts to reach out to the minority communities and then at the same time prevent those minority communities from voting?" (1 Hr‟g Tr. 58:14, 58:21-23.)
As further evidence that the RNC has no incentive to violate the Consent Decree by engaging in ballot security initiatives meant to intimidate minority voters, Mr. Josefiak pointed to the changing composition of both that Committee and the Federal Government. In doing so, he pointed out that at least two members of the RNC‟s leadership -- Chairman Michael Steele and Chief Administrative Officer Boyd Rutherford -- are African-American, and are the first minority holders of their respective offices. Additionally, he noted that two of the highest officials responsible for enforcing the VRA and other election laws prohibiting discrimination are themselves minorities, stating that "I find it very difficult to believe that with an African American President, and an African American Attorney General, that the laws that are already on the books regarding voter fraud, voter intimidation, and voter suppression are[n‟t] going to be actively pursued by this Justice Department." (Id. at 65:22-66:2.)
In discussing changes to both federal and state election laws during the period since the Consent Decree was last modified in 1987, Mr. Josefiak noted that the Motor Voter Law has made it easier for individuals to register to vote and has contributed to a major increase in minority voting. The main thrust of his testimony regarding changes to election laws, however, focused on the effects of the BCRA, the HAVA, and state laws relating to early voting. With respect to the first, he noted that the BCRA prohibited the use of so-called "soft money" by both the DNC and RNC. See 2 U.S.C. § 441i(a)(1) ("[N]ational committee[s] of a political party. may not solicit, receive, or direct to another person a contribution, donation, or transfer of funds or any other thing of value, or spend any funds, that are not subject to the limitations, prohibitions, and reporting requirements of this Act."). Prior to the enactment of that section, the party committees were allowed to raise "soft money" -- a term used to describe donations that could be made in unlimited amounts -- from various sources and then use those donations to fund the campaigns of candidates, voter registration drives, or any other initiatives they saw fit. Since the BCRA, however, the parties have been limited to funding their activities using "hard money" -- individual contributions with varying limits depending on whether they are given directly to a candidate or political committee. See 2 U.S.C. § 441a(a)(1) (limiting direct contributions to candidates to $2,000 per person and contributions to national committees to $25,000 per year).
Mr. Josefiak claimed that the BCRA‟s ban on the use of "soft money" by national committees, when combined with the restrictions in the Consent Decree, led to several developments that heightened the danger of voter fraud and gave the DNC a competitive advantage in both its voter registration and ballot security efforts. First, he contended that the DNC had increasingly relied on various non-profit and community organizations to implement voter registration drives and get-out-the-vote efforts, noting as an example the Association of Community Organizations for Reform Now ("ACORN"). (1 Hr‟g Tr. 75:5-12.) Because the BCRA prohibits the national political committees from directly supervising or participating in voter registration drives funded by such entities, Mr. Josefiak contended that the "outsourcing" of those efforts had heightened the danger of voter fraud by creating a situation in which the number of organizations conducting registration drives proliferated to the point that it was impossible for the RNC to track their activities and hold them accountable for potential instances of voter fraud. Additionally, he contended that the Court‟s interpretation of the Consent Decree -- in allowing private individuals or groups (such as Ms. Malone during the 2004 election) to bring intervenor actions to enforce its restrictions -- created an uneven playing field between the DNC and RNC. In the event of such suits, the RNC would be forced to expend its limited "hard money" resources defending against claims brought by groups that are not bound by the fundraising restrictions contained in the BCRA, while the DNC would not be subject to similar litigations because it is not bound by the Decree. (Id. at 75:12-17.) Moreover, Mr. Josefiak claimed that past actions such as the Malone suit had required the RNC to divert high-level officials in the critical days just before an election so that they could be deposed or otherwise involved in the litigation, whereas the DNC -- which is not subject to such suits under the Consent Decree -- is able to put such officials to better use in focusing on specific races. (Id. at 99:4-25.)
In addition to contending that the restrictions contained in the BCRA might create an uneven playing field between the DNC and RNC by requiring the latter to use campaign funds to defend lawsuits brought by third parties pursuant to the Consent Decree, Mr. Josefiak also argued that changes to state and federal election laws had decreased the danger of voter intimidation. His testimony to that effect focused on two developments: (1) the HAVA‟s requirement that individuals be allowed to cast a provisional ballot (which is later examined by election officials to determine its validity), see 42 U.S.C. § 15482(a), and (2) the adoption of alternative voting procedures by an increasing number of states. According to Mr. Josefiak, the ability of individuals to cast a provisional ballot largely eviscerates the danger that voter suppression programs like the ones that led to the enactment and modification of the Consent Decree or the voter challenge list at issue in the Malone matter will result in the disenfranchisement of qualified voters. He claimed that -- since anyone can cast a provisional ballot regardless of whether their name appears on the voter rolls -- the use of challenge lists and other ballot security provisions will not preclude a qualified individual from voting even in cases of egregious voter suppression such as an individual being wrongfully accused by an RNC poll watcher of possessing some disqualifying characteristic, such as having committed a felony. See (1 Hr‟g Tr. 79:16-24.)
Similarly, Mr. Josefiak testified that the adoption of alternative voting procedures by an increasing number of states has largely alleviated the danger of voter suppression that led to the enactment and modification of the Consent Decree. In doing so, he specifically noted the spread of two alternatives to the traditional model in which voters were required to visit the polls on Election Day: early voting and no-excuse absentee voting. Under the former, a voter may visit one of several early voting polling places during a designated time period prior to Election Day. The latter procedure allows voters to submit their ballots by mail without being required to show that they will be out of the state or otherwise unable to vote in person on Election Day. As of 2008, 31 states allowed early voting, while 28 permitted absentee voting. See (RNC Hr‟g Ex. 21.) Mr. Josefiak testified that such procedures inject an element of "flexibility" into the voting process that was not present at the time the Consent Decree was enacted in 1982 or modified in 1987. (1 Hr‟g Tr. 82:1-9.) He claimed that taking advantage of early voting would allow minorities who suspected that they might be subject to intimidation on Election Day to avoid harassment or delays by avoiding poll watchers deployed on Election Day or, if subjected to suppression tactics during their first attempt to vote, making repeated trips to the polls. (Id. at 82:7-9.) Moreover, Mr. Josefiak testified that "if it were rumored in the minority community that there was going to be an effort to suppress the minority vote," individuals who wished to avoid potential abuse at the polls could exercise their right to cast a mail-in ballot through absentee voting. (Id. at 82:22-83:14.) He admitted on cross-examination, however, that most states require voters to apply for an absentee ballot in advance of the election, and that requirement might preclude a voter from deciding to avoid the polls based on rumors of intimidation that may not come to light until just prior to Election Day. (Id. at 144:2-10) (discussing requirement in New Jersey that a voter apply for an absentee ballot at least seven days prior to the election). Additionally, Mr. Josefiak noted that, as of 2006, almost 80 percent of people still voted in person by visiting the polls on Election Day, while only 14.3 percent voted by absentee ballot and 5.6 percent took advantage of early voting. See (RNC Hr‟g Ex. 24.)
The DNC called three expert witnesses. The first was Dr. Chandler Davidson, a retired Professor from Rice University and expert on the history of race relations, including the VRA and voter suppression. Much of Dr. Davidson‟s testimony was drawn from the manuscript of a book he recently authored, titled "Republican Ballot Security Programs: Vote Protection or Minority Vote Suppression -- Or Both?" See (DNC Hr‟g Ex. 2.) That book, which Dr. Davidson initially began in the late 1980s, was completed in 2004 at the request of Bob Bauer, a prominent Democratic election lawyer who served as General Counsel to the 2008 Presidential Campaign of Barack Obama and was recently named White House Counsel. The book details 14 ballot security programs undertaken by the Republican Party between 1982 and 2003 in which minority voters were allegedly intimidated. In doing so, the book includes chapters on the 1982 program instituted in Newark, New Jersey that resulted in the Consent Decree and the 1986 initiative in Louisiana that led to its modification.*fn4
Dr. Davidson testified that voter suppression efforts remain widespread, especially cases of what he referred to as "vote caging" -- the process used in the Malone case -- in which nonforwardable letters are sent to individuals at the address under which they registered to vote, and those whose letters are returned as undeliverable are added to a list of voters to be challenged at the polls on Election Day. (1 Hr‟g Tr. 159:7-161:21.) He then noted that vote caging and other methods of voter suppression -- such as disseminating misinformation on the time and place individuals should vote or posting challengers at the polls to harass potential voters -- are overwhelmingly directed at minorities, and are usually perpetrated by Republican operatives. (Id. at 164:24-165:5.) Dr. Davidson opined that the reason such programs are usually carried out by Republicans rather than Democrats may simply be a matter of statistics: minority voters -- who are far more likely to be ...