1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY 2 CIVIL ACTION (DRD)

Transcription

1 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY 2 CIVIL ACTION (DRD) 3 DEMOCRATIC NATIONAL COMMITTEE, : TRANSCRIPT OF PROCEEDINGS et al., : 4 : M O T I O N Plaintiffs, : 5 : -vs- : Pages : REPUBLICAN NATIONAL COMMITTEE, : 7 et al., : : 8 Defendants. : Newark, New Jersey October 28, B E F O R E: HONORABLE DICKINSON R. DEBEVOISE, 12 SENIOR UNITED STATES DISTRICT JUDGE A P P E A R A N E S S: 15 EDWARD A. HAILES, ESQ., 16 Attorney for the Intevenor Malone 17 JOHN W. NIELDS, ESQ. 18 Attorney for the Intevenor Malone Pursuant to Section 753 Title 28 United States Code, the

2 as 22 following transcript is certified to be an accurate record taken stenographically in the above entitled proceedings MOLLIE ANN GIORDANO Official Court Reporter MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

3 1 2 APPEARANCES - continued 3 GENOVA, BURNS & VERNOIA BY: ANGELO J. GENOVA, ESQ. and 4 PETER J. CAMMARANO, III, ESQ., Attorneys for the Plaintiff 5 6 DUGHI, HEWITT & PALATUCCI WILLIAM J.PALATUCCI, ESQ., 7 Attorney for the Defendant 8 McDERMOTT, WILL & EMERY 9 BY: BOBBY R. BURCHFIELD, ESQ. Attorney for the Defendant 10 BELL, GAGE & HARBECK 11 BY: DORORTHY A. HARBECK, ESQ., Attorney for the Defendant

4 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973)

5 2 3 4 THE COURT: Good afternoon. 5 MR. HAILES: Good afternoon, your Honor. 6 THE COURT: Maybe the first order of business would be 7 to have the appearances. And before we do that, I have the 8 notice of motion from the pro hac vice admission of Mr. 9 Burchfield. I signed an order granting the motions, but I've 10 amended it. Mr. Burchfield, it is going to cost you money to 11 participate. Could everybody just identify himself and herself 12 at this point. 13 MR. NIELDS: Your Honor, I'm John Nields. I represent 14 the proposed intervenor, Ebony Malone. 15 THE COURT: It will be granted on the same terms. And 16 Mr. Winfield, you have to pay for the Client Utility Fund and 17 the local rule covers all that. 18 MR. WINFIELD: Thank you, your Honor. And I'm from

6 19 the law firm of Howard Simon in Washington, D.C. And my THE COURT: That's fine. 21 MR. WINFIELD: My colleagues, Patricia Butler and Ari 22 Rothstein are in the courtroom sitting next to me from the 23 advancement project. Maybe he should announce himself. 24 MR. HAILES: Good afternoon. I'm Edward A. Hailes, 25 Jr MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

7 Motion 4 1 THE COURT: And you represent the plaintiffs too? 2 MR. HAILES: Yes, proposed intervenor, Ebony Malone. 3 MR. GENOVA: Good afternoon, your Honor. Angelo 4 Genova, Genova Burns and Vernoia, Livingston, New Jersey. With 5 me today is Peter Cammarano, who is to my rear, from my office. 6 We represent the Democratic National Committee and the New 7 Jersey Democratic State Committee, both of whom are identified 8 as plaintiffs in the underlying order entered by your Honor in THE COURT: All right. For the Republican National 11 Committee? 12 MS. HARBECK: Your Honor, Dorothy A. Harbeck, from 13 Dell Gage & Harbeck, local counsel for the Republican National 14 Committee. 15 THE COURT: And you're together? 16 MR. PALATUCCI: William Palatucci, Cranford, New 17 Jersey, local counsel here for Mr. Burchfield. 18 THE COURT: Fine, thank you.

8 19 I suppose the first order of business would be the 20 motion to intervene. We can't do much else. I have just 21 had -- I assume, I'm cover everything. I also will have an 22 opportunity to read them a little bit later, I'm sure. Go 23 ahead. 24 MR. NIELDS: Your Honor, I propose first to address 25 why we're here, and then address the law in intervention MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

9 Motion 5 1 THE COURT: All right. 2 MR. NIELDS: Your Honor, we're here representing a 3 newly represented African American voter in Cuyahaga County, 4 Ohio. And we're here because we just learned that her name is 5 on a very long list of challenged voters. There are literally 6 challenges of other voters, and it is our position that this 7 list was compiled, and is being used in violation of the 8 consent decrees. And I can explain that further but I'd like 9 to get soon to the legal issue, your Honor. 10 Your Honor, a list like this, particularly coming at 11 the 11th hour, and including the name of everybody whose mail 12 was returned, will cause chaos on Election Day, particularly, 13 in light of the fact that the names on this list are 14 concentrated in highly majority African American precincts. 15 And if challenges are made on Election Day to everybody on 16 these lists, then those polling places will literally

10 grind to 17 a halt. Huge lines will happen, and many voters, including 18 potentially our client, will be denied the right to vote. 19 THE COURT: Well, what is the procedure in Ohio for 20 challenging voters? I gather challenges are -- have been 21 appointed by each party if challenging a particular voter how do they go about doing it under Ohio law? 23 MR. NIELDS: Your Honor, my understanding -- there are 24 two processes, as I understand it. One is a pre-election Day 25 challenge, and that has been logged with these MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

11 Motion 6 1 THE COURT: But I gather the judge in Ohio yesterday, 2 has eliminated that stuff. 3 MR. NIELDS: Did a TRO. The press reports are that 4 the Republican party of have Ohio says they -- however, there 5 will be a preliminary injunction hearing tomorrow. We don't 6 know what the final outcome of that case will be, but the 7 Republican party said, regardless of the outcome of that case, 8 they plan Election Day challenges at the polls by poll loggers, 9 and those are going to have to get resolved. 10 THE COURT: But that's what I guess -- getting back to 11 my question, what is the procedure in Ohio with regard to 12 challenging a respective voter? 13 MR. NIELDS: Your Honor, I think I'm going to get this 14 right. My understanding is whether the poll watcher logs a 15 challenge that requires a process, that involves actions and 16 decisions and consideration by the poll workers, the

12 State 17 employees whose job it is to try to move people through the 18 polls, get rid of the lines, and get people to vote. And if 19 their time and attention is distracted from that by literally 20 hundreds of challenges at many, many precincts, the process 21 already tapped to its limit, is going to be another Florida, 22 only multiplied by THE COURT: Well MR. NIELDS: That's the concern. That is the concern, 25 your Honor MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

13 Motion 7 1 THE COURT: Well, I'm interested in, suppose you have 2 a line of 25, 30 voters lined up waiting their turn to cast 3 their ballot. Can a challenger approach them and ask them what 4 their names are and where they live? What exactly is a 5 challenger permitted to do or forbidden from doing? 6 MR. NIELDS: We don't know -- they are permitted to 7 make a challenge, and we've seen the written challenge that 8 they made to these people. And what they do is they say: I 9 challenge the voter on the ground that they don't live in the 10 precinct. And the basis for that, given that they've done it 11 to everybody on this list, is simply the fact that they've 12 changed address THE COURT: How do then -- there's just a face, as far 14 as they're concerned? 15 MR. NIELDS: A what? 16 THE COURT: It's simply a person whom they don't

14 know, 17 presumably. 18 MR. NIELDS: They get to look at who the person is. 19 The poll watcher -- a poll watcher designated by the parties, 20 in Ohio and in many other states is a special person that the 21 State admits to the polling place. General public is not 22 allowed to be there except to vote. But the poll watcher is 23 permitted to come to the polling place THE COURT: Well, can he watch the person register and 25 sign his name? 9465 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

15 Motion 8 1 MR. NIELDS: Yes, precisely. So that they have a 2 list -- they'll -- what we're concerned about, we don't think 3 this should happen. But we believe it will, unless something 4 is done. They will have a list, the names on this list, and 5 they will challenge them on the same basis they've been 6 challenging them. And then the people on the spot are going to 7 have to figure out what to do. And we believe -- we're not 8 going to be talking 25, 30 people in line, we think we're going 9 to be talking a whole lot more than that. And there is a real 10 risk that if that occurs, there will be chaos at the polling 11 booths. And the reason we're here, your Honor, is that we 12 believe under -- first of all, this is exactly the same kind of 13 thing that happened in 1981 and in 1986 that resulted in 14 consent decrees. 15 THE COURT: It was a lot more in MR. NIELDS: It was a lot more in both of those. One

16 17 of the things that occurred is that lists were made up 18 precisely this way, and -- in the sense that it was a list of 19 everybody whose mail was returned undelivered. And they were 20 focussed in predominantly African American or minority 21 precincts. And what happened in 1986 when that occurred for 22 the second time, this is down in Louisianna, there was a 23 consent decree which required preapproval by the court for any 24 ballot security program. 25 THE COURT: That's the MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

17 Motion 9 1 MR. NIELDS: Eighty-seven, excuse me. 2 THE COURT: -- decree? 3 MR. NIELDS: Correct. And our position, your Honor, 4 is thta that applies here. We want to take discovery so we 5 understand the role that RNC played in this project, and in 6 many other similar projects that appear to be going on around 7 the country. And the reason -- 8 THE COURT: I'm not sure we have time to do the whole 9 country. 10 MR. NIELDS: We have time -- we have time, your Honor, 11 for the RNC, if we're correct that they're responsible for 12 this, to seek and establish grounds for preapproval before they 13 can go forward with these very disruptive voting challenge 14 projects. 15 THE COURT: Well, does Ohio have a procedure such as 16 New Jersey has, which involves mailing the ballots, or mailing 17 sample ballots to all registered voters before the election,

18 18 when the ballots are returned as not being deliverable, a list 19 was prepared and presumably given to the poll workers at the 20 relevant district on the basis of which a challenge maybe made 21 just by the board, itself, that is by the poll workers, the 22 official workers. Does Ohio do that? 23 MR. NIELDS: Your Honor, I believe Ohio sends mailings 24 to all of the voters on the registration list, and I've read it 25 recent papers by the RNC, and they claim that all of the lists 9465 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

19 Motion 10 1 were made up of returned mail from the state of Ohio's 2 mailings. That may be right. It may be wrong. The press 3 reports have been to the contrary, but that's something we want 4 to explore in discovery. 5 THE COURT: Well, if it were correct, then this would 6 be a list which would be prepared by a neutral body, 7 presumably, and what would prevent anybody from using it to 8 challenge voters? 9 MR. NIELDS: Because it doesn't provide a basis to 10 challenge voters. You can't challenge a voter because you 11 changed address and a voter in Ohio is permitted to come into 12 the polling place and say I moved, and they just vote, there's 13 no challenge. There's no rate adjudication. That's what any 14 voter can do in Ohio. 15 THE COURT: Well, where do you vote in Ohio where you 16 move from, or where you move too? 17 MR. NIELDS: If you change precincts, then you must 18 vote in the new precinct. But if you moved within the

20 same 19 precinct, which is a very common occurrence, then you simply 20 give the address and go to the same place. So the problem is, 21 your Honor, that this -- this list is reportedly about to be 22 used. It may be used in the first sense of a pre-election Day 23 challenge which results in, your Honor, notices being sent out, 24 and the voters having to go to a hearing before Election Day, a 25 huge burden on the right to vote. That's not what should be 9465 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

21 Motion 11 1 happening, but it is triggered -- 2 THE COURT: That's not going to happen. 3 MR. NIELDS: It's not going to happen, depending on 4 what happens in the preliminary injunction hearing on Friday. 5 THE COURT: Well, I don't know how they could at this 6 juncture comply with the Ohio law, because it would have to be 7 at least two days before the election and has to be three days 8 notice of the hearing, and I think time has escaped us on that 9 one. 10 MR. NIELDS: It was an eleventh hour challenged that 11 absolutely did not fit the circumstances of realty, and it's 12 going to be even worse if they try to jam this into polling 13 place challenges that have to be resovled. 14 THE COURT: Well, and how would you permit, under your 15 application, how would you permit legitimate challenges?

22 16 MR. NIELDS: Well, what I would -- what I would permit 17 are, your Honor, first of all, I think your Honor had a pretty 18 good conception, the poll workers know how to run elections. 19 They will make challenges themselves, if there's a basis for 20 it, but they're not going to make a challenge simply because 21 somebody is moved. But the poll watcher has the power to 22 trigger a process, 23 THE COURT: Well, we don't know what the basis of the 24 return of the mail was, the person has moved or it may be that 25 this is a fictitious person MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

23 Motion 12 1 MR. NIELDS: We will, if it's a fictitious person, the 2 person won't show up at the poles. 3 THE COURT: Somebody might come and say whoever it is 4 is registered fictitiously and be ready to vote. I live in the 5 area near Jersey City, and we're familiar with all kinds of -- 6 I'm not saying recently, but over my life and career we've had 7 many enjoyable episodes in Hudson County, even Essex county on 8 occasion. There is fraud. So how do you protect against fraud 9 and also void the problem that you're bringing to my attention? 10 MR. NIELDS: Well, where there is a basis for 11 believing that the person who shows up is a -- voting under a 12 fictitious name, or doesn't have any real address, then perhaps 13 a challenge is appropriate. What is not appropriate, what is 14 absolutely not appropriate is to challenge everybody who

24 has 15 moved sometime since their address was recorded on the rolls. 16 That's not the way it's supposed to happen. That's not a 17 basis -- that is not a basis for a proper challenge. And yet, 18 because the challenge was logged, your Honor, because it was 19 logged, the Ohio state machinery felt obliged to send notices 20 to every single person on this list and call them in for a 21 hearing, pre-election Day. That is what a challenge logged by 22 the Republican party does to the Ohio election system. We 23 believe those challenges were improper because all of them 24 said: We challenge on the ground the person doesn't live in 25 the precinct. The person making the challenge didn't have a 9465 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

25 Motion 13 1 clue whether they lived in the precinct. They only knew their 2 mail had been returned. 3 THE COURT: All right. Well, now, you're getting into 4 the merits of the application. What about the -- 5 MR. NIELDS: Standing, the intervention? 6 THE COURT: The intervention motion. 7 MR. NIELDS: Your Honor, the reason my client has a 8 right to intervene is because the consent decrees were designed 9 for her benefit. The consent decrees protect voters from 10 discrimination and intimidation. I know it was brought by a 11 political party, and I'm sure they had their own motives and 12 reasons for doing it. But the laws they proceed under are 13 civil rights laws. The laws they proceed under are designed 14 for the benefit of voters and minorities. Shows you that what 15 is going on is they're protecting voters and minorities. It

26 16 says the Republican National Committee shall, what, refrain 17 from undertaking any ballot security activities in polling 18 places or election activities where the racial or -- is a 19 factor in the decision to conduct the activities. And then it 20 says: The conduct of such activities disproportionately end or directed towards districts that have a substantial portion 22 of racial or ethnical classes, shall be considered relevant in consideration of such a factor and purpose. And so, your 24 Honor, this consent decree is designed to protect the people 25 who vote. The very same people the case was brought under was 9465 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

27 Motion 14 1 designed to protect, and we have cited cases that stand for the 2 proposition that where there's a consent decree in a civil 3 rights case, it may be enforced by the class of people for 4 whose benefit it was made. That's our position. 5 THE COURT: Now, why isn't the Democratic National 6 Committee taking action under the consent decree with respect 7 to both this voter security operation and also to the ones 8 taking place in other states? 9 MR. NIELDS: I think they have to speak for themselves 10 on that, your Honor. I can't answer that. What I can say is 11 we represent an African American whose voter was about to be 12 challenged. We think has been challenged, and we think was 13 challenged pursuant to a ballot security effort that is 14 required to be approved by your Honor before it can go forward. 15 And her interest is not to have her vote impeded with or 16 denied. That's why we're here. 17 MR. BURCHFIELD: Let me begin, your Honor. This is an 18 important matter in a lot of respects. It's very important

28 to 19 my client, the senior officers of the RSC, who were up with me 20 quite late last night when we received the papers at seven 21 o'clock looking at this matter, I would strongly urge you to 22 look at it before you take any action. This is not the case. Your Honor is perfectly correct that there was a lot 24 alleged in the 1981 case that is not present here. 25 Letters were sent out that were intimidating on their 9465 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

29 Motion 15 1 face. They were sent out specifically to minority counties. 2 There were poll watchers that were sent out dressed in uniform. 3 That had an intimidating effect on the voters. That is not 4 this case. Mr. Nields he trying to interpret the consent 5 decree to mean that any time, not just the Republican National 6 Committee, as here, the State Committee, which is not a party 7 to the consent decree, takes any action consistent with state 8 law, even it's racially neutral, that is a violation of the 9 consent decree. And we have to come in and get prior approval 10 of that. That is not the way the RNC reads the decree. 11 THE COURT: Would you agree if the Republican National 12 Committee were involved with this, it would technically violate 13 the consent decree? 14 MR. BURCHFIELD: Your Honor, I would not agree with 15 that. I think it decree has to be read in light of the history

30 16 of the decrees, and the racially neutral challenges under state 17 law to voter registration we do not believe is encompassed by 18 this decree. And that's our position. If that is encompassed 19 by the decree, your Honor, we ask in our papers, your Honor, 20 that your Honor provide consent under the consent decree for 21 the RNC to do exactly what it's doing now. And let me just 22 tell you what is going on, because the affidavit of Miss Cino 23 sets it out in some detail. The press reports are often 24 exaggerated and often down right inaccurate. 25 Here's what happened. On August 10th, the Republican 9465 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

31 Motion 16 1 National Committee sent out letters to newly registered voters, 2 and a copy of this will be attached to the final version of the 3 Cino affidavit, to the new and registered voters, not racially 4 selected voters, not those selected to the particular 5 precincts. That letter on its face, it says: Congratulations. 6 It quotes Ronald Reagan and urges them to visit the RNC web 7 site. It is a letter urging them to support the Republican 8 ticket. About 3500 of those letters of the 40,000 that were 9 sent out were returned. Nothing has been done with those 10 returned letters. Nothing. They are not part of the list that 11 is being challenged right now, and that is a very important 12 fact. 13 In September, the Ohio State Republican Party sent out 14 letters to the newly registered voters in five counties, all 15 registered voters, not ethnically selected voters, in

32 five 16 countiess that were not racially selected. 17 THE COURT: The counties themselves probably had a 18 large minority population which probably, if history is any 19 indications, would have voted for the other party. 20 MR. BURCHFIELD: That's not -- we don't believe that's 21 correct, because Mr. Lott's affidavit, which is going to be which is coming, and I'm sorry we don't have it here. We kind 23 of have it under the gun. His affidavit shows that there are 24 counties in Ohio that have a higher minority population. That 25 is not the driver. And the affidavit of Miss Cino denies that 9465 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

33 Motion 17 1 racial or ethnic motivation was a driver for selecting those 2 counties. A number of those letters were returned as 3 undeliverable. 4 Now, simultaneously the county clerks for the Board of 5 Elections in every Ohio county were, as I take it from your 6 earlier comment, doing just what they do here in New Jersey, 7 they were sending out new voter packets for the newly 8 registered voters. And that -- the returned mail from that 9 mailing, from those mailings of each of the county clerks, that 10 neither the RNC or the State Republican Party had anything to 11 do with, it is the returned mailings from that -- from those 12 county clerk mailings that are the majority of the challenges 13 on that list. There are some in there as well from the Ohio 14 Party mailing. But most of them are the county clerk mailing. 15 And the challenges, your Honor, are statewide. They are not

34 16 focussed on minority precincts, as they were in They 17 have not been sent surreptitiously, like ballot -- the mail 18 from the RNC, your Honor, specifically states on its face that 19 it's paid for by the Republican National Committee. The 20 mailing from the Ohio Republican Party, it's paid for by the 21 Ohio Republican Committee. This is not a situation where 22 either the state or the national party has singled out -- it is 23 not a situation in which they have tried to intimidate minority 24 voters from the face of the nation. It's not a situation where 25 they've challenged the return mail. They've challenged it 9465 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

35 Motion 18 1 statewide. 2 The problem with the plaintiff's expert witness, the 3 proposed intervenor's expert witness, their proposed expert 4 witness chose two counties out of the the entire state of Ohio 5 and tried to find a disparate impact in just those two 6 counties. Professor Lott says, if they looked at all the 7 counties where all the challenges were being made, the 8 disparate impact would very likely interfere. But, your Honor, 9 I think it makes common sense that their expert Khery picked 10 the counties where he gets the result that he wanted to get. 11 The allegations of disparate impact here are erroneous. The 12 allegations of disparate treatment or disparate intent are also 13 erroneous. And we think that this situation simply doesn't 14 fall within the decree. 15 Your Honor, if I may, there's one other important 16 point that I'll talk about in a minute. Both the proposed 17 intervenors here in their declarations, and you read

36 the 18 declarations, I'm sure, they state under oath that they have 19 multiply registered. Miss Malone THE COURT: Four times. 21 MR. BURCHFIELD: Four times. Mr. Agusto, three times. 22 Now, if someone THE COURT: Is it the same address of each 24 registration? 25 MR. BURCHFIELD: Each of them gave at least two 9465 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

37 Motion 19 1 different addresses. They're multiply registered at one of 2 their addresses at least twice. Mr. Agusto registered at least 3 twice at the carwash. And Miss Malone registered three times 4 at her current address. 5 THE COURT: That has been removed from the prior MR. BURCHFIELD: Correct, your Honor. 7 THE COURT: She should have registered at a new 8 address. 9 MR. BURCHFIELD: One would think. 10 THE COURT: Well, she did. 11 MR. BURCHFIELD: She registered at her new address 12 three times. 13 THE COURT: I'm sure the election people, when they 14 get -- assume they're going to file it alphabetically, they're 15 only going to give it to her once. 16 MR. BURCHFIELD: Unfortunate, your Honor, in the sense 17 that my parents named me Bobby, and I meet very few Bobbies 18 that aren't Roberts. I don't run into people that have the

38 19 same name as I do. But that does happen. The fact that you 20 have the same name on the voter booth doesn't mean it's the 21 same person THE COURT: If it's the same address, it seems rather 23 likely. 24 MR. BURCHFIELD: I take your Honor's point. It could 25 be a Jr. left off. What is the problem with deleting the two 9465 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

39 Motion 20 1 duplicative names? How does that intimidate or undermine Miss 2 Malone's right to vote if they take off for three -- for three 3 duplicative registrations? That's not a racially motivated -- 4 THE COURT: I understand that the problem isn't the 5 intimidation so much as it is the effect of this challenging it 6 will have in the polling place. It's just going to just knock 7 out the ability, maybe to -- of many people in that particular 8 district to vote. There's going to be such a log jam created 9 by the challenges going down the line that nobody will be able 10 to get through the process. 11 MR. BURCHFIELD: Well, your Honor, the reason, as I 12 understand it, and of course I'm not here today representing 13 the Ohio party, as I understand it, the reason they filed their

40 14 voter challenges early was so they could avoid those long lines 15 on Election Day. But the plaintiffs, the people in line with 16 the plaintiffs THE COURT: When did they file the challenge? 18 MR. BURCHFIELD: They filed the challenges, I believe, 19 a week ago -- either a week ago today, or a week ago tomorrow. 20 THE COURT: How could that possibly conceive to be 21 early? It's so late you couldn't possibly put it in Ohio 22 statutes? 23 MR. BURCHFIELD: As Miss Cino's affidavit says, your 24 Honor, my clients learned of the 35,000 irregularities in the 25 mailing list just within the last two or three weeks. So it's 9465 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

41 Motion 21 1 not as if they've known about this for months. They acted 2 pretty promptly after they found out about the issue, and they 3 filed law, which is consistent with what your Honor has said, 4 and what the court has said in the consent decrees. 5 THE COURT: But you have to concede, it will create a 6 very difficult problem. 7 MR. BURCHFIELD: Well, your Honor -- 8 THE COURT: It's five people in each particular 9 district. 10 MR. BURCHFIELD: It is a very difficult problem, your 11 Honor. The Ohio legislature has considered that issue. 12 They've set up that procedure. They're giving everybody the 13 right to a hearing, which on its face, seems very fair. I 14 don't think there's probably many instances in the recent 15 history in which there have been -- in which there have been 16 this many questionable registrations. 17 But the basic point I would keep driving home, your 18 Honor, is the consent decrees in this case have always

42 focussed 19 on whether there is a racially-motivated or 20 ethnically-motivated intent or impact. And there is no 21 evidence here to show that. This has been -- these challenges 22 are based upon mailings that were racially neutral from the 23 State of Ohio, not from the Republican National Committee. I 24 can see mailings by the Ohio Republican parties as well. It's 25 statewide, it's not limited to minority precincts MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

43 Motion 22 1 THE COURT: I think the question will be -- a question 2 will be, do the Republican challengers -- will the Republican 3 challengers be upgrading to all of the districts of the state, 4 or will they be concentrating in certain districts in the 5 state, maybe those which have the minority population, with the 6 inhabitants of the district? 7 MR. BURCHFIELD: Well, your Honor, the challenges have 8 been statewide. They have not been concentrated, and now it is 9 for the Ohio law, depending on what the Federal Judge does on 10 the injunction proceeding, and what the Sixth Circuit might do 11 as well on how they deal with that. 12 Let me go back to a question you asked Mr. Nields, 13 which is, what happens if there's a long line. A voter showed 14 up, and they're on this list. The answer to that, the 15 Secretary of State, Mr. Blackwell, from Ohio, has said a voter

44 16 can he fill out a provisional ballot. That provisional ballot 17 will allow the lines to keep moving, and it will allow this 18 issue to be sorted out later. And that person's vote, if 19 they're properly registered, will be counted. That's the way 20 the provisional ballots are now available throughout the United 21 States as a result of the "Help America Vote" issue. That is 22 the solution to the issue that you've raised. 23 THE COURT: So it would be your concept that you've 24 had the long line and maybe 10 of the first 50 are on the 25 challenged list, and they give the different kind of ballot? 9465 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

45 Motion 23 1 MR. BURCHFIELD: They give the provisional ballot, and 2 they vote in secret with that ballot, put it in an envelope, 3 and they fill out on the outside of the envelope the 4 appropriate information. And then over the ten days following 5 the election, those ballots are evaluated and counted, if 6 they're appropriate, the same way absentee ballots are counted. 7 THE COURT: So it would be your conception of the 8 chain of events that 35,000 challenges would remain in effect 9 on the list, would remain in effect, the Republican challenges 10 on the poles challenge each person whose names appear on the 11 list, there would be no delays because they would be given one 12 kind of ballot? 13 MR. BURCHFIELD: That is certainly one way to deal 14 with it, my own personal view. And, again, the Republican 15 National Committee is not the challenger. My personal

46 hope 16 would be that this could be worked out before Election Day, 17 which is the procedure that was in place before it was enjoined 18 yesterday. Now, 35,000 sounds like a big number, and it is. 19 It's a troubling number, both because it may indicate that 20 there are inappropriate people on the ballot. We know, for 21 example, it's been reported that Dick Tracy and Mary Poppins 22 are registered a number of times in Ohio. It's also be 23 reported that ACORN, who is the entity that found the intevenor 24 plaintiffs and brought them to court today, has paved they're under criminal investigation in Ohio. Some of their 9465 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

47 Motion 24 1 employees have already been indicted for voter registration 2 irregularities. They're under criminal investigation in 3 Florida, and I believe in Colorado. This is laid out in Miss 4 Cino's affidavit. There are some troubling things going on 5 here. 6 It is not conducive for fair elections, your Honor, to 7 have a situation where there have been numerous media reports 8 of irregularities in the voter registration process, and when 9 35,000 letters sent to the addresse source given by the new 10 registrants. It is not conducive to good election practice to 11 ignore that, which is what Mr. Nields appears to be asking you 12 to do. 13 Now, as for the lines either before the election or at 14 the polling places, presumably Miss Malone is not going to vote 15 four times, and her -- presumably her name is on that 35,000

48 16 list four times. I haven't checked it. I don't know, but I'm 17 assuming it is. If there are fictitious names on there, 18 presumably they're not going to show up to vote. 19 (Cell phone rings) 20 THE COURT: Whose cell phone is that? It is 21 absolutely forbidden to have cell phones turned on in this 22 courtroom. All right? Whoever had possession of it should 23 leave the courtroom. And I think we'll get a marshall up here 24 to escort you, if it proves to be necessary. All right, find 25 out where it is MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

49 Motion 25 1 A VOICE: I found it. 2 MR. BURCHFIELD: Your Honor, as I was saying -- as I 3 was saying, this is a situation that cries out for something to 4 be done. Our position is that the Ohio Republican Party has 5 acted in a measured and prudent way, that does not defend a 6 consent decree, and is certainly not racially or ethnically 7 motivated. 8 If I may, let me turn to this issue of intervention, 9 because this is a very important issue too. Never before since 10 it 22 years of the consent decree has your Honor allowed a 11 non-party to the decree to come into court and seek an 12 enforcement THE COURT: I don't think a non-party has ever 14 requested that. 15 MR. BURCHFIELD: Your Honor, it's of concern to my 16 clients, and I respectfully submit that it should be a concern 17 to the Court, that non-parties can come in here four days

50 18 before the elcetions to make allegations that I believe the 19 record will show is not accurate. It has a severely disruptive 20 effect on my clients at the very time they're doing what 21 they're paid to do, which is to engage in election activity. 22 It has a very disruptive effect on the election process because 23 of the uncertainty that is engendering. So this is a -- this 24 is an unfortunate and precedent setting issue. 25 Mr. Nields did not answer your question why the DNC 9465 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

51 Motion 26 1 isn't here. If this is such a pervasive problem, one would 2 think the DNC would come in. 3 THE COURT: They're right -- 4 MR. BURCHFIELD: I will be listening with interest, 5 your Honor. 6 Now, that's point number one. Any intevenor, any 7 voter any where in the country can run up here to the court on 8 the eve of any election and make allegations that will -- that 9 may have the effect of what they've asked for here, that they 10 want to take the deposition of the Republican National 11 Committee tomorrow. That is -- that is bad policy, I'll start 12 with that. 13 Number two, the intervenors, the intervenors are not 14 legally entitled to intervene in this case. Under the Blue 15 Chip Stamps case of the United States Supreme Court, we quoted 16 on page 6 of our briefs, a well-settled line of authority from 17 this court establishes that a consent decree is not

52 enforceable 18 directly or in collateral proceedings by those who are not 19 parties to it, even though they were intended to be benefited 20 by it. 21 THE COURT: That case has been distinguished -- that 22 was a 1975 case, as I recall. 23 MR. BURCHFIELD: It's a '74 case, your Honor, and it 24 has been distinguished. But it's been distinguished in 25 situations in which consent decrees can specifically provide 9465 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

53 Motion 27 1 that non -- we quote to you and cite to you the Coca Cola 2 Bottling Case from the Third Circuit in 1993, a more recent 3 case, and that case adopted the Delaware District Court's 4 decision from 1987, in which it made this very point. 5 So our point, your Honor, is this consent decree, this 6 consent decree does not, and from my client's perspective was 7 certainly never intended to allow anyone other than the parties 8 to the decree to sue under the decree. And if that had been 9 intended, it would be in there. I think it is not the deal the 10 RNC made, and it is not the law to allow a third party, a 11 non-party to come in here and try to enforce this decree at 12 this point. 13 Third point, your Honor, these plaintiffs -- these 14 intervenors are inappropriate enforcers of this decree. They 15 submit in their own affidavits they're multiple registrants. 16 There is an issue, whether you consider it an

54 administrative 17 issue or whatever you consider it, it is certainly not 18 inappropriate to remove at least the duplicative registrations 19 that these individuals, these purported intervenors have on the 20 books of the State of Ohio. And their claims that they're 21 going to be intimidated by the removal of the duplicative 22 registrations don't make any sense. You only have to be 23 registered once in order to be able to vote. If the 24 duplicative registrations remain on the books, and if they are 25 in fact legitimately registered, no one is going to bother them 9465 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

55 Motion 28 1 when they go to the poles. Apparently there are some -- some 2 significant efforts were spent trying to find plaintiffs. And 3 if this is the best they can do, I would submit to you that 4 that's another reason why the Court should not open up this 5 decree for enforcement by non-parties. 6 Unless the Court has any questions for me, that's all 7 I have to say on the intervention point. I certainly have a 8 lot to say about the merits -- 9 THE COURT: I suspect you would. Let me see if Mr. 10 Genova has anything he wants to add. 11 MR. GENOVA: Good afternoon, your Honor. I find 12 myself visiting your Honor every four years in connection with 13 this application. 14 THE COURT: I always think I might go on vacation two 15 weeks before Election Day. 16 MR. GENOVA: My concern is my loss of hair is 17 attributable to these applications, having had a full beard

56 and 18 full head of hair when I first started these applications. 19 Your Honor, on behalf of the Democratic National 20 Committee and the New Jersey State Committee, who are parties 21 to the underlying action, we have no objection to the motion to 22 intervene. I'd like to point out to the Court a number of 23 things that I think would reinforce the appropriateness of the 24 intervention by non-parties to the action. 25 First of all, your Honor, the initial action is 9465 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

57 Motion 29 1 captioned to include the two registered voters of New Jersey. 2 The original action, in addition to having party plaintiffs, 3 political parties were brought on behalf of voters who, like 4 the applicants here, would qualify for the franchise in their 5 jurisdiction. The underlying consent order, your Honor, in our 6 view, and quite frankly having been one of the lawyers who 7 negotiated its terms under the supervision of this Court, 8 contemplated embracing applicants of the very sort that are 9 seeking to apply here. And, your Honor, I think that's best 10 evidenced by the face of the order itself. 11 First of all, in paragraph 2 of the order that was 12 entered, the settlement agreement which was embraced by your 13 Honor's order, it states in the prefatory paragraph, that is 14 RNC and RSC, hereinafter referred to as the Parties

58 Committees, 15 agreed that they will, in the future, in all states and 16 territories of the United States. So it was contemplated by 17 the parties at the time that the breadth and embrace of this 18 order would go beyond the shores of the Delaware, and north and 19 south of this jurisdiction THE COURT: It's taken us to North Carolina and 21 Louisiana. 22 MR. GENOVA: Your Honor, it's taken us to California, 23 Louisiana. It's taken us to North Carolina, among other 24 jurisdictions. And on the issue of non-parties never 25 requesting it, I don't have an exact recollection of who the 9465 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

59 Motion 30 1 applicants were in each of the cases that have been brought 2 over the 24 years, but what is very clear, there have been out 3 of jurisdiction claims affecting voters in other jurisdictions. 4 Secondly, I'd like to point out, your Honor, that in 5 paragraph sub A of 2, the breadth of the order is further 6 reinforced -- 7 THE COURT: By 1981? 8 MR. GENOVA: This is the 1981 settlement agreement. 9 This would be attached to the consent seal and protective 10 order. That states that as one of the requirements that the 11 party -- that the RNC is to comply with all applicable state 12 and federal laws protecting the right to duly qualified 13 citizens to vote for canidates of their choice. What better 14 indications that, your Honor, by entry of this order, which was 15 negotiated by the parties, it was a settlement agreement, that 16 it was intended by all concerned that qualified citizens in

60 17 other jurisdictions would necessarily be covered by its 18 embrace. I cannot, for the life of me, see how the applicants 19 here don't satisfy those predicates that are sent out -- set 20 forth in the order, itself. 21 Your Honor, on the issue of the merits, and the 22 threshold questions that your Honor raises, why is the DNC not 23 challenging the application? That's not a completely accurate 24 statement in this respect. The Ohio litigation that I've been 25 attempting over the last four hours, I've been -- the Southern 9465 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

61 Motion 31 1 District of Ohio, that application is made by the Ohio 2 Democratic Party. There is a variety of legal foundations and 3 bases to make legal applications, and the threshold decision 4 was made to make the application in Ohio under the relevant law 5 in Ohio and that proved to be successful. A temporary 6 restraining order was issued, and a hearing was going to be 7 conducted -- 8 THE COURT: Excuse me. When will the hearing be held? 9 MR. GENOVA: Friday, October 29th, 10:30 a.m. I'm 10 informed by that, by a press release issued by the Federal 11 District Court, Southern District of Ohio. But that was 12 provided to me earlier today. Your Honor also is no doubt 13 aware on prior matters that have been brought before the Court, 14 you have historically required what I would construe to be a 15 formidable threshold, the proofs to an application, if you 16 will, under the consent order historically has been that you

62 17 have always looked to whether or not there was a nexus between 18 the activity and the party, political parties in this case, the 19 Republican National Committee or the New Jersey -- Republican 20 State Committee. I don't believe there's an allegation here 21 that the Republican State Committee is an actor. Clearly 22 there's an allegation that the Republican National Committee 23 is, in fact in this case. It sounds like there's been an 24 admission that there's been some kind of mailing upon which the 25 challenges are predicated. But there have been other 9465 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

63 Motion 32 1 illustrations where the Democratic party has first resorted to 2 the state courts before seeking relief under this application, 3 in part to utilize the vehicles in the state court to secure 4 discovery that might otherwise support a claim. And I point 5 your Honor to the 1986 litigation where I recall that the - - an 6 initial application was made in state court in the state of 7 Louisiana, where the claim there was that the Republican 8 National Committee had submitted affidavits of challenge to 9 over thirty-one thousand people whose letters had been returned 10 as undeliverable. There was initially a temporary restraining 11 order in late September and subsequent to that in October. The 12 application was made here for judicial intervention where the 13 discovery in that proceeding formed a basis. 14 Here we have claims that are supported by affidavits, 15 suggesting that the initial threshold has been met. We had

64 an 16 admission from the lawyer on behalf of the Republican National 17 Committee to the extent that there's a nexus to the committee. 18 That threshold may have been set, but that's for your Honor to 19 determine. 20 Your Honor, on the issue of the availability of the 21 procedures available under the Help America Vote Act, I think 22 it is somewhat disingenuous to argue that the Help America Vote 23 Act provides the tool to deal with the long lines that would be 24 visited upon the voters of Ohio by way of utilizing provisional 25 ballots. That law is called the Help America Vote Act, not 9465 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

65 Motion 33 1 hinder the America Vote Act. And what we find here -- 2 THE COURT: There will be no hindrance. It will just 3 be two ballots: One, the official ballot, and one is the 4 preliminary -- 5 MR. GENOVA: The provisional ballot. Your Honor, that 6 leads me to the order, itself. And with all due regard to the 7 counsel for the Republican National Committee, I can speak on 8 the history with respect to what the parties intended by the 9 settlement agreement, and I'd like to speak to that. 10 As your Honor might recall, and I would hope to 11 refresh your recollection. It was great debate over the 12 language of paragraph 2E. In fact, that was the sticking 13 points THE COURT: Are you back to the 1981 settlement 15 agreement? 16 MR. GENOVA: Settlement agreement. Yes, your Honor.

66 17 That was the principal sticking point between the parties. And 18 the Republican National Committee argued vociferously and 19 sought language that would limit the scope of the standard, if 20 you will, that would apply to what I would call, given my labor 21 law background, an intent test. 22 The parties ultimately agreed to the adoption of not 23 only a purpose test, but an effects test, that the party 24 specifically intended that would otherwise appear to be 25 facially neutral practices, that might otherwise qualify as a 9465 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

67 Motion 34 1 legitimate ballots, security matters should be scrutinized to 2 determine whether or not there's a significant effect on 3 protecting groups sought to be embraced by the underlying 4 settlement agreement. And in fact, language to that effect is 5 embraced in subparagraph E when we talk about whether or not 6 the racial or ethnic composition is a factor in a decision to 7 conduct, where the actual conduct of such activities, or 8 significant effect, those four words, a purpose -- purpose -- 9 or five words, significant effect, bifurcate the standard that 10 is to be applied. 11 So here it's not just an argument, first of all, I'm 12 going to appropriate the claim that one would have to establish 13 that there's an intentional purpose here. I don't think that 14 has to be established, ultimately. I think that has to be 15 established, minimum, a facially neutral policy has a 16 significant effect. And so in the case of the mailing,

68 it's 17 not just the mailing, it's how the mailing is used. Does its 18 use have a disparate effect upon those that would otherwise be 19 protected by the order? 20 THE COURT: I really don't know how it will be used. 21 MR. GENOVA: We do know that it's going to be used I can only say the press reports I've read within the last two 23 hours, it's going to be used to affect the challenge program. 24 It's suggested at least in one affidavit that the incidents of 25 challenges are higher on a percentage basis as directed to 9465 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

69 Motion 35 1 predominantly minority voting precincts. And we do know that 2 it's going to be used as a basis for poll watcher challenge 3 program that's employed in Ohio. 4 Your Honor used the comparison here that New Jersey, I 5 don't profess to know the Ohio law, in New Jersey it's common 6 place that county chairs designate their challengers before the 7 election. They go into the polling place. Here statutory 8 plays upon which challenges can be brought. In Ohio, that's 9 apparently a law that's never been utilized. Both parties are 10 choosing -- they're poll watchers and challengers, and it's 11 been announced, as far as I could read from the papers, that 12 the under deliverables are now the basis for the challenges 13 that are to be logged en mass at the polling place. And it's 14 suggested, at least by the affidavit that's submitted here, and 15 I can't speak to it, I'm not here to argue the merits, but

70 16 based on what I've just read, it appears to be suggested at 17 least by the affidavit of the expert that the utilization of 18 these lists will have a significant effect, arguably a 19 disparate effect on those that would otherwise be protected 20 under the order. 21 So, your Honor, I have to defer to Mr. Nields, it's 22 his case. But it's just an observation of one lawyer that's 23 been around a little bit and seen these kinds of claims. 24 THE COURT: I think what I'll do is take a short 25 recess while I read the papers which the RNC has submitted, 9465 MOLLIE ANN GIORDANO, C.S.R., NEWARK, N.J. (973) 220-

71 Motion 36 1 which I haven't had an opportunity to read yet, and then I'll 2 come back and rule on the motion to intervene. 3 Yes. 4 MR. BURCHFIELD: Your Honor, one additionally point 5 there I had intended to make and I did not. I think it is 6 important, significantly neither of the proposed intervenors 7 here, Miss Malone or Mr. Agusto, were on either of the mailing 8 lists for the mailing sent by the Republican National Committee 9 or the Ohio Republican Committee. They were on the mailing 10 lists from the County Clerk's office, and that's another reason 11 why they are not appropriate internors in a case to enforce a 12 consent decree that depends so heavily on the use. It is a 13 good case example. 14 THE COURT: All right. 15 Yes. 16 MR. NIELDS: May I just respond very briefly to a 17 couple of points? 18 THE COURT: Yes.