After telling an audience in Altoona, Pa., that he would seek their help in policing the polls in November to root out voter fraud — something that even the state of Pennsylvania has noted doesn’t exist in any meaningful way — Donald Trump’s campaign nationalized the effort on Saturday morning. Now eager Trump backers can go to Trump’s website and sign up to be “a Trump Election Observer.” Do so, and you get an email thanking you for volunteering and assuring you that the campaign will “do everything we are legally allowed to do to stop crooked Hillary from rigging this election.” There are any number of problems with this, again starting with the fact that the frequency of in-person voter fraud in elections is lower than getting five numbers right in the Powerball. But there’s a potentially bigger legal problem noted by election law expert Rick Hasen of the University of California at Irvine: Trump’s unnecessary effort could be violating a prohibition against voter intimidation that applies to the Republican Party.
In 1981, the Republican Party rolled out a voter-integrity effort in New Jersey that mirrors what Trump demanded in Altoona. As described in a legal ruling about the prohibition:
The RNC allegedly created a voter challenge list by mailing sample ballots to individuals in precincts with a high percentage of racial or ethnic minority registered voters and, then, including individuals whose postcards were returned as undeliverable on a list of voters to challenge at the polls. The RNC also allegedly enlisted the help of off-duty sheriffs and police officers to intimidate voters by standing at polling places in minority precincts during voting with “National Ballot Security Task Force” armbands. Some of the officers allegedly wore firearms in a visible manner.
(Trump in Altoona: “We have to call up law enforcement. And we have to have the sheriffs and the police chiefs and everybody watching. … The only way they can beat it in my opinion — and I mean this 100 percent — if in certain sections of the state they cheat, okay?”)
The Democrats sued, and in 1982, the two parties agreed to a system under which the Republican National Committee agreed to refrain from a number of tactics that could be used to intimidate voters. That consent decree, as it is called, has been modified a number of times, often in response to efforts to challenge the ability of Democratic voters to vote, occasionally targeting black voters specifically.
In his blog post, Hasen points specifically to the fifth prohibition in the decree, Part E, which keeps the party 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.” Trump’s pointed reference to how voters in “certain sections of the state” were likely to cheat was almost certainly a reference to a debunked claim that the vote was rigged in predominantly black parts of Philadelphia.