DJ 166-54?69

Recommended lawsuit against North

Carolina Republican Party, Helms 

for Senate Committee, et al. under 1991

42 U.S.C. 1971(13) and 42 
ACTION MEMORANDUM

John R. Dunne Lee H. Rubin
Assistant Attorney General Attorney, Voting Section
civil Rights Division . Civil Rights Division

I. Recommendation

We recommend that the attached complaint be filed against
the North Carolina Republican Party, the Helms for Senate
Committee, Jefferson Marketing, Inc, Computer Operations and
Management Professionals, Inc., DisCount Paper 
Campaign Management, Inc., Edward Locke and Douglas Davidson, to
obtain declaratory and injunctive relief under 42 U.S.C 1971(b)
and Section 11(b) of the Voting Rights Act. The complaint
alleges that the named defendants conducted a postcard mailing
program designed to intimidate and threaten black voters
throughout the State of North Carolina in order to discourage
them from participating in the November 6, 1990 general election,
in violation of 42 U.S.C. 1971(b). The complaint also alleges
that, irrespective of the defendants? intent, the postcard
reasonably tended to intimidate the selected voters and thus
violated Section 11(b) of the Voting Rights Act.

II. Facts

A. Background

According to the 1990 Census, North Carolina has a total
voting?age population of 5,071,000 persons, 1,027,000 (20.25%) of
whom are black. As of October 8, 1990, there were 3,347,635
registered voters in the state, 635,045 (18.97%) of whom were
black. On November 6, 1990, in addition to the myriad local
elections and congressional election contests, there was a hotly
contested interracial contest for the U.S. Senate in North
Carolina between incumbent Republican Jesse Helms (W) and
Democrat Harvey Gantt (B). If Mr. Gantt had won, he would have
been the first black person in this century to represent a
southern state in the U.S. Senate.

 

 



 

am

The contest between Senator Helms and Mr. Gantt for the seat
in the U.S. Senate was extremely hard-fought and contentious. In
addition to the millions of dollars spent on advertising during
the campaign, a significant amount of funds and resources of the
respective candidates? committees and the respective political
parties were devoted to voter registration efforts during the
latter half of 1990. .These efforts resulted in an increase in
the statewide black voter registration of 10.6 percent as
compared to an increase in the statewide white voter registration
of 5.3 percent. The newly registered black voters increased the
percentage of black registered voters in the state from 18.2
percent in April, 1990 to 19 percent in October 8, 1990. This
information showing an increase in black voter registration was
released on or about October 18. 

As electiOn day neared, the polls indicated that the race
between Senator Helms and Mr. Gantt was likely to be extremely'
close. Indeed, a poll released on September 22, 1990 found?461'
percent of the surveyed voters supported Senator Helms, 45 
percent backed Mr. Gantt. In the third week of October, however,
the polls gave Mr. Gantt the advantage, with one poll on
October 19 showing him leading by as many as eight percentage
points. . - . 

It is against the backdrop of the increased black voter
registration and the release of polls showing Mr. Gantt with a
lead that the actions taken by the prospective defendants mUst be
viewed. Prior to October, 1990, our investigation revealed that
although ?ballot security? had been discusSed jointly by the
Helms for Senate Committee (?Helms Committee?) and the North
Carolina Republican Party no concrete steps had been
taken to implement a ?ballot security? program.1/ However,

 

1/ The term ?ballot security? has been used over the years to
describe a myriad activities that allegedly are conducted to
combat and deter election fraud. ?Ballot security? efforts have
previously been the subject of litigation-in both the federal and
state courts. In 1982, the Democratic National Committee 
filed a lawsuit against the Republican National Committee 
alleging that ?ballot security? efforts being conducted and/or
financed by the RNC were designed to intimidate minority voters
and constituted a violation of inter alia, Section 11(b) of the.
Voting Rights Act. The case, Democratic National Committee v.
Republican National Committee, C.A. No. 81-3876 (D.N.J..1982) was
settled by consent decree in which the RNC agreed, inter alia, to
?refrain from undertaking any ballot security activities in
polling places or election districts where the racial or ethnic



 

 

during the beginning of the third week of October,
contemporaneous with the release of voter registration figures
showing a disproportionate increase in black voter registration
and of polls showing Mr. Gantt with a substantial lead, the
decision was made to implement a ?ballot security? program in
connection with the November, 1990 election and to direct such
efforts almost exclusively at black voters. As will be fully

 



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.?

In 1986, the DNC reopened the 1982 litigatiOn against the 
RNC claiming that ?ballot security? activities undertaken by the
RNC in Louisiana, Indiana, and Missouri, which included mailing
letters to voters in predominantly black precincts and then
attempting to purge from the registration rolls those voters
whose_letters were returned as undeliverable, violated the 1982
consent agreement. This action was also_settled by consent
decree; the parties amended the 1982 agreement to require that
the RNC seek approval from the court prior to undertaking any
?ballot security?_activities to ensure that such activities
comply with the terms of the decree. Democratic National
Committee v. genublican National Committee, C.A. No. 86?3692
1987). -

Also in 1986, a state court action in Louisiana was filed to
enjoin the attempted purge of black voters described above. In
Long v. Gremillion, C.A. No. 142,389 (Ninth Judicial District,
Rapides Parish, La. 1986), the court granted injunctive relief,
finding that the attempt to purge under this procedure violated
state law governing the purging of voters as well as the
Constitution of the State of Louisiana and the Fifteenth
Amendment to the U.S. Constitution. 

In November, 1990, the DNC filed a motion to reopen
discovery in the 1986 case to determine whether the postcard
mailing in North Carolina constituted a violation of the consent
agreement. After permitting limited discovery over the Weekend
before the election, the court ruled that the DNC failed to
establish a sufficient link between the RNC and the postcard
mailing to hold the RNC responsible for the postcard mailing. The
court did find, however, that the RNC had violated the consent
decree by failing to advise state Republican committees and party
organizations of the types activities that were prohibited under?
the terms of the consent decree.

 

 

eXplained below, the ?ballot security? program, in particular the
postcard mailing component of the ?ballot security? program, was
designed to intimidate and confuse black voters eligible to vote
in the November election and thus decrease the turnout of the
group of voters most likely to vote for Mr. Gantt.

As part of the ?ballot security? program, on October 26 and
October 29, 1990, about 124,000 postcards containing the
following message were mailed virtually exclusively to black
voters throughout the State of North Carolina.

-Voter Registration Bulletin

If you moved from your old precinct over
30 days ago, contact the County Board of
Elections for instructions for voting on
Election day.

When you enter the voting enclosure, you
will be asked to state your name,
residence and period of residence in that
precinct. ?You must have lived in that
precinct fOr at least the previous 30
davs or vou will not be allowed to vote.

It is.a Federal crime, punishable by up
to five years in jail, to knowingly give
false information about your name,
residence,.or period of residence to an
Election_Official. . -

The postcard mailing was comprised of two mailings based on
distinct criteria for selecting the voters who were to be sent
cards. One mailing of 44,130 cards was targeted exclusively at
black voters throughout the state who had a ?change of address?
associated with their name, based upon a ?change of address? list
provided by a Chicago mass mailing outfit that had a contract
with the Republican National Committee. 'Thus, black Democrats
black Republicans, and black unaffiliated voters who had a
?change of address? appended to their file were mailed postcards.
The postcards to this group were sent bulk rate to the ?new?
address and did not have the Republican Party disclaimer.

The other mailing of 81,446 cards was targeted at households
with at least one registered Democrat in 86 selected precincts
throughout the state. The precincts were chosen based upon the
party affiliation and racial composition of the registered voters
within the precincts, and their level of support either for
Senator Helms during the 1984 Senate contest against Jim Hunt, or
for President Bush in the 1988 Presidential contest. Black
voters constituted approximately 94 percent of the registered



 

 

Fut'f?'i'i 

 

 

voters within the targeted precincts. The postcards to this
group had the Republican Party disclaimer ?Paid for by N.C.
Republican Party? on the bottom of the card and were sent first?
class with address corrections requested.

In addition, on October 31 and November 1, an effort was
made to resend first?class postcards to Charlotte, Mr. Gantt?s
home town, that had been erroneously addressed and thus had never'
been delivered by the postal service. This effort was undertaken
contemporaneous or subsequent to the initial press accounts -
calling into question the accuracy of the Card.

After the mailing, concerted efforts were made to sort.the
first?class postcards returned with a corrected address to
develop lists of voters for use at the.polling places on election
day as part_of the tballot_security? program. Those efforts were'
called to an abrupt halt late in the day on November 2, the day
the FBI agent first made contact to begin our investigation.

The postcard mailing operation was financed by the NCGOP and

was primarily coordinated by Edward LOCker a political consultant 

from Charlotte who had spearheaded the 1984 ?ballot security?
program for the NCGOP and the 1984 Helms for Senate Committee.
Indeed, it appears that Locke played a major role in every .
critical decision concerning the postcard mailing. The evidence
shows that representatives of 1990 Helms for Senate Committee
and the NCGOP jointly decided to undertake a ?ballot security?
effort and finance it with NCGOP funds, and that Helms_Committee_
and NCGOP representatives played significant roles in contracting
with Locke to coordinate the ?ballot security? program and in 
formulating a propoSed set of activities.f0r the ?ballot
security,? proqram, including the postcard mailing. The Helms
Committee also devoted personnel and office space to Mr. Locke
for purpoSes of his work on the ?ballot security? program.

The Jefferson Marketing Companies,g/ a group of companies
primarily involved in direct-mail fund-raising, advertising and
consultant work on behalf of conservative.Republican candidates,
and political organizations such as the National Congressional
Club, an organization Originally formed to support Senator Helms?

-election efforts in the 1970s, were involved in all facets of the

production of the postcard mailing. In addition, Mr. Doug
Davidson, an employee of Campaign Management, one of the
subsidiaries, worked closely with Locke on the postcard mailing
and conferred with him concerning both the text of the postcard 
and the targeting criteria for the card. "Davidson also served on
the Helms committee and appears to have been the main conduit of

 

g/ These companies include, Computer Operations and Management
Professionals, Inc., (Comp, Inc.), Discount Paper Brokers, Inc.
and Campaign Management, Inc.

 

 

 

 

information to the Helms Committee concerning ?ballot security.?
Davidson appears to have had supervisorial and managerial
authority over the personnel and resources of Discount Paper
Brokers, Inc., Campaign Management, Inc., and Computer Operations
and Mailing Professionals, Inc.

The evidence shows that Locke was serving as an ?agent? of
the NCGOP as well as the Helms Committee to coordinate the 1990
?ballot security? program. All of his conduct was undertaken
within the scope of this agency relationship and his conduct was
later ratified by the principal organizations. Accordingly, such
organizations are responsible for Locke?s conduct in effectuating
the ?ballot security? program. It alSo appears that Davidson was
acting on behalf of the Helms Committee in performing work on the
ballot security program and thus his actions also implicate_the
Helms Committee. In addition, Davidson, an employee of Campaign
Management, had supervisorial and managerial authority over the
personnel and resources of Campaign Management, Inc., as well as
Discount Paper Brokers, Inc. and Comp, Inc. These organiZations
should also be held responsible for'Davidson?s conduct. 

The evidence compiled thus far reveals that Locke played a
primary role in drafting the text of the postcard and in -
selecting the targeting criteria for the postcards, and that he.
acted with an intent to intimidate and threaten black voters and
to discourage them from participating in the 1990 election.

Furthermore, Doug Davidson also played a significant role in
the selection of voters to be mailed postcards and likely also
participated in the project with the understanding that the cards
were designed to frighten black voters and chill participation in
the November 6 election. Information we have obtained suggests,
however, that Davidson and Locke did not act alone, as 
individuals with the Jefferson_Marketing Companies and/or the
Helms Committee may have reviewed the targeting criteria and the
text of the postcard prior to the mailing of the cards. Most
important in this regard is the fact the final version of the
card is different.from the last version that.was provided to the
graphic artist by Locke. In addition, at least one Jefferson
Marketing executive was involved in attempting to remail first?
class postcards that had been misaddressed at the same time that
the press was reporting that the cards inaccurately reflected
North Carolina state law. .

C. Accuracy of the Contents

The text of the postcard is a false and misleading statement
of North Carolina law on three separate grounds.

1. Voters Who Have Moved More Than 30 Days Before The
Election 

 

 

 

The second sentence of the middle paragraph of the postcard
states that ?[yJou must have lived in that precinct [in which you
are registered] for at least the previous thirty days, or you
will not be able to vote.?

In 1983, the North Carolina legislature enacted_a law which
provided that a voter.?who has moved from one precinct to another
within the same county more than 30 days before a primary or
election but who has never not submitted a changelof address
report,? may upon following the requisite procedures, cast a
regular ballot in the election. N.C. Gen. Stat. l63?72.3. The
statute provides that a voter, upon appearing to vote at the 
precinct in which he previously resided, shall inform the
registrar at that precinct of his new address within the county
and shall be given a transfer voting certificate. At this point,
the precise procedure varies from county to county. Some .
counties instruct such voters to cast their ballot at the county
board of elections office or a site specifically designated for
transfer voters. other counties permit voters to take their
transfer certificates and vote in the precinct in which they
currently-reside. Whatever the procedure, it is-clear that the
postcard statement does not accurately reflect state law, as a
voter may vote even if he has not resided in the precinct in 
which he is registered for the previous thirty days prior to the
election.

2. Voters Who Have Moved Within 30 Days of the Election

The underlined sentence of the middle paragraph of the card
is also contrary to the Constitution of the State of North
Carolina. Article VI, Section 2 of the North Carolina
Constitution provides that a Voter who has moved from one
precinct to another within the State and within thirty days of an
election may vote a regular ballot in the precinct in which such
voter previously resided even though the voter has not lived in
that precinct for ?at least the previous thirty days.? According
to the North Carolina Constitution, ?[r]emoval from one precinct,
ward, or other election district shall not operate to deprive any
person of the right to vote in the precinct. . .from which that
person has removed until 30 days after the removal.? Thus,
contrary to the postcard, a recently moved voter may vote in a
precinct the-one from which the voter has moved despite not
having lived there during the entire 30 day period prior to the
election.

3. No Requirement To State Period Of Residence

The card also misstates North Carolina law, and well-
settled practice, in a third respect. The first sentence of the
middle paragraph states, ?[WJhen you enter the voting enclosure,
you will be asked your name, residence and period of residence in
that precinct.? However, under N.C. Gen. Stat. 163-150, a



 

 

voter is instructed only to ?state his name and place of
residence to one of the judges of election.? Current and former
State election officials advised us that they are aware of no
county which instructs its poll officials to ask a voter the
period of time in which the voter has lived in his residence.
Thus, the postcard?s assertion is not mandated by North Carolina
law and apparently does not comport with the practice in the

State.

Alex Brock, the Director of the State Board of Elections,-
recognized the inaccuracy of the postcards and issued a press
release prior to the.election that contained accurate voter
residency requirements. William Culp, Supervisor of the
Mecklenburg County Board of Elections, a county in which a
significant number of targeted voters resided, not only issued a_
press release to correct the misinformation but aired public 
service messages on the black~oriented radio stations to inform 
voters of the accurate eligibility requirements. In addition,
several other county boards of elections that were flooded with?

phone calls form voters who were receiving cards, informed voters!

?that the cards were inaccurate and went on to provide them with
correct information. . -

D. The Investigation

Our investigation began on November 1, 1990, the day we-
obtained reliable information that the postcards at issue had
been sent primarily to black voters throughout the State. 0n .
that day, we requested that the FBI contact Jack Hawks, Chairman
of the North Carolina Republican Party, and ask Mr. Hawke, among
other things, the method used to select the voters who were sent
postcards and all plans regarding the use of the returned
postcards. Mr. Hawks refused to return FBI Agent George Dyer?s
phone calls, and eventually referred Dyer to his attorney, Thomas
Farr, an attorney with Maupin, Taylor, Ellis and Adams, in 
Raleigh, who was immediately advised by Mr. Dyer of the
information we sought from the North Carolina Republican Party.

On Monday, November 5, 1990, after receiving no information
responsive to our request, you contacted Mr. Farr and insisted
that he provide us with the information we requested by that
afternoon. During this conversation, Farr assured you that no
information obtained from the returned cards would be used as a
basis to challenge voters on election day. Late in the afternoon

on November 5, Farr telefaxed to us a list of precincts, which he_

orally represented to be the precincts in which the voters
selected to receive the postcards resided.;/ Although Farr also

 

 

 

g/ In a later correspondence, Farr disavowed that he made any
representation suggesting that the only voters who received



 

 

 




.

 

advised us that Hawke would be made available that day for an
interview with Dyer and myself, Hawke in fact did not submit to a
voluntary interview that day.

The lack of cooperation which marked the initial stages of
the investigation has persisted during the course of our
investigation. Soon after the election, we contacted the North
Carolina Republican Party, the Jefferson Marketing Companies, 
Mr. Ed Locke, and Mr. Doug Davidson, and requested that they
provide us with all information relevant to our investigation.
Mr. Hawks and Ms. Effie Pernell, the Executive Director of the
North Carolina Republican Party, voluntarily spoke with Dyer on
November 9, 1990. In late November, we received a request from
Mr. Michael Carvin, one of the attorneys representing the North
Carolina Republican Party, for a meeting with Department
attorneys to discuss our investigation. At the time we received
this request, we were on the verge of obtaining voluntary
statements from individuals associated with Jefferson Marketing
and from Doug Davidson. However, the respective counsel chose to
delay the scheduling of any interviews_until we responded to 
Mr. Garvin?s request. Asserting that the requested meeting would
be ?premature,? we declined the invitation to meet with Carvin on
December 21. - I -

Garvin persisted in his efforts to meet with us as he
repeated his request in January. For the same reasons, we again
declined to meet with him and also outlined all of the
information that we had requested from his clients but had not
yet received.&/

After our second denial of Mr. Garvin?s request, more than
two months after our initial request for information, individuals
from the Jefferson Marketing Companies and Doug Davidson
voluntarily provided us with information and documents. At their
request all of these interviews were transcribed and conducted by
Mr. Rosenbaum and myself. Although the individuals we
interviewed provided us with important information concerning the
postcard mailing, the various counsel involved instructed their
clients not to answer several questions that are clearly relevant

 


postcards resided in one of the precincts identified on
November 5.

3/ Although Mr. Carvin asserted that we had been provided with
all requested documents by February 8, 1990, we subsequently
discovered that several documents had'not been disclosed.
Documents responsive to our request were just provided in the
last week of March, nearly four months after our initial request
and almost two months after we had been advised that all such
documents had been produced.

 

 

 

to our investigation. In addition, with respect to the Jefferson
Marketing Companies, at the conclusion of the interviews we
outlined pieces of information and documents which we had
requested but had not received. After a delay without a
response to our request, counsel for the Jefferson Marketing
Companies advised us that his clients will no longer voluntarily
cooperate with our investigation.

After it became clear that individuals associated with the
Helms Committee also were involved in the 1990 ?ballot security?
program, we asked these individuals to provide us with relevant
information. Their response, like that of the North Carolina
Republican Party, did not reveal a desire to cooperate. They
initially agreed to submit to voluntary interviews under the
condition that we agree to their definition of the legitimate
scope of our investigation. We, of course, refused to accede to
such a demand and advised them that their insistence upon such a
condition would be construed as a refusal to cooperate
voluntarily. Subsequently, approximately one_month after our
initial request, the individuals associated with the Helms 
Committee agreed to speak with us voluntarily; like the others,
they insisted that the interviews be transcribed. Also, similar
to the other interviews, these individuals have refused to
provide with us all of the information relevant to our
investigation and not protected by the attorney?client
privilege.?/

In addition,'during the first week of our investigation,
Dyer contacted Edward Locke and asked that he provide us with any
information he possessed concerning the l990 ?ballot security?
program, including the postcard mailing. Locke advised Dyer that
he was represented by Kenneth Andreason of Charlotte and .
requested that all further inquiries regarding the investigation
be made through Andreason. Andreason subsequently informed Dyer
that Locke would not provide us with any information absent a
grant of criminal use immunity. After several conversations
between myself and Andreason, Andreason decided to offer a
general summary of Mr. Locke?s testimony to provide us with some
basis to evaluate Locke?s request for use immunity.?/

 

During the past several months in which we have been .
attempting to gather information from the primary individuals and
entities responsible for the mailing, Dyer has contacted numerous
individuals who played more of a peripheral role in the mailing
or possess background information concerning one or more of the
principal participants. This information has been critically
important to our investigation.

In this memorandum, the term'?Locke?s proffer? refers to this
summary of testimony offered by Andreason on behalf of Locke.



 

 

 

   

Over the past two months, the following individuals have
been interviewed by Mr. Rosenbaum or myself. All of these
interviews have been recorded and transcribed by a court
reporter: -

Ms. Joan McKeithan (computer programmer, Computer Operations
and Mailing Professionals, Inc. (Comp, Inc.))

Ms. Frances Pope (operations manager, 
Ms. Peggy Underwood (data processing'manager, Comp, Inc.)

Ms. Sheila Talton (account representative, Discount Paper
Brokers, Inc.)

Mr. Doug Davidson (former employee, Campaign Management,
Inc.)

Mr. Calvin Kervin (President, Discount Paper Brokers, Inc.)
Mr. Mark Stephens (President, Jefferson Marketing, Inc.)
Mr. Carl Ward (former treasurer, 

Ms. Elizabeth McCommons (finance director, NCGOP)

Mr. Chris Gardner (former staff assistant, NCGOP)

Mr. Thomas Ballus (communications director, NCGOP)

Ms. Amy Starling (former employee, 1990 Helms Committee)

Mr. Thomas Farr (attorney, Maupin, Taylor, Ellis Adams,
P.A.) 

Mr. Peter Moore (campaign manager, 1990 Helms Committee)
Mr. Carter Wrenn (consultant to 1990 Helms Committee)

In addition, we repeatedly have asked counsel for the NCGOP
for an opportunity to re?interview Jack Hawke and Effie Pernell
to clarify their previous responses and to make inquiries into
areas that had not been delved into during their interviews with
Dyer. The NCGOP refused to make Hawke and Pernell available for
any further interviews. .

D. The 1990 ?Ballot Securitv? Proqram

The postcard mailing was one component of the 1990 ?ballot
security? program financed by the NCGOP. The wheels for the 1990
?ballot security? program were set in motion long before the
actual mailing of the postcards. According to Doug Davidson, of



 

Campaign Management, Inc., ?ballot security? was discussed at
several meetings held during the summer months of 1990. These
meetings were attended by Davidson, Carter Wrenn, a consultant to
the Helms Committee, Peter Moore, the campaign manager for the
Helms Committee, Jack Hawke, Chairman of the NCGOP, and Effie
Parnell, Executive Director of the NCGOP. During these meetings,
in addition to discussing general campaign strategyp Davidson
recalls that a consensus was reached that some type of ?ballot
security? effort needed to be undertaken prior to the 1990
general election. Peter Moore confirmed Davidson's
recollections, as he recalls_meetings in which discussions
focused upon the need for a ?ballot security? program in
connection with the November, 1990 election. At one of these
meetings involving the leadership of the Helms Committee and the
NCGOP, the decision was made to budget $25,000 for the 1990
?ballot security? program and to finance the ?ballot security?
program with NCGOP funds. -

In early September, 1990, Ed Locke, a political consultant
from Charlotte who had played a major role in organizing the 1984
?ballot security? program for the NCGOP and the 1984 Helms
Committee, contacted Tom Farr to offer his services for
coordinating the 1990 ?ballot security? program.1/

On October 16th, Davidson and possibly Tom Farr, who had
worked with Ed Locke on the 1984 ?ballot security? program for
the NCGOP and the Helms Committee,?/ contacted Locke by telephone
in Charlotte and asked Locke if he would be willing to meet in
Raleigh to discuss the 1990 ?ballot security? program.

Apparently Peter Moore and Carter Wrenn had been consulted
concerning contacting Locke for discussions on the ?ballot
security? program and had given their assent to pursue such

 

1/ Locke knew Farr from their work on the 1984 Helms campaign,
and in particular, the 1984 ?ballot security? program. Farr was
the primary coordinator of the 1984 ?ballot security? program
conducted by the NCGOP and 1984 Helms for Senate Committee. He
coordinated several ?ballot security? activities in 1984,
including a postcard mailing to voters in predominantly black
precincts which Was designed to serve as a basis to challenge
voters on election day (see footnote 6, infra). Locke apparently
worked with Farr on this project as well as other ?ballot
security? activities. Although Farr did not play an active role
in the 1990 Helms campaign, he was sufficiently connected to the
Helms Committee to notify the appropriate people at the Committee
concerning his phone call from Locke.

8/ At various points during the course of our investigation,
Farr has represented the NCGOP, the Helms for Senate Committee,
Peter Moore, Carter Wrenn and Ed Locke.

 

 

 

discussions. Locke agreed to meet with the Helms Committee
representatives and flew to Raleigh the next day.

In Raleigh, he met initially with Moore, Davidson, and Farr.
This meeting was held at Farr?s law firm, Maupin, Taylor, Ellis 
Adams. At the meeting, the participants apparently reviewed the
1984 ?ballot security? program with an toward the activities
that should be undertaken in 1990. Davidson stated that by the
end of the meeting they had formulated a tentative outline for
the 1990 ?ballot security? effort. Davidson recalls that a
mailing targeted at voters who no longer resided in the precinct
in which they are registered was one of the projects suggested
for 1990. They also discussed who would be best suited to
coordinate the ?ballot security? effort. 

According to Farr, he told the attendees of the meeting that
there was only a limited number of ?ballot security? programs
that could be undertaken with only about three weeks left in the
election. Farr also stated that the need for a ?ballot security?
program was not as compelling as in l984, since, unlike in 1984,
the state had a Republican governor. Sinoe_the Governor has'
power to appoint two out of the three members of each county?s
board of elections, Farr explained that the Republican-controlled
county election boards throughout the state would serve
effectively as a statewide ?ballot security? program, as they
would ensure a fair election process for Republican candidates.
He suggested that contact be made with a Republican board of
elections member in every county-to ensure that they will be
working on election day. He also suggested that, to the extent
that any ?ballot security? programs are undertaken, they should
focus on those precincts with little or no Republican presence at
the polls. To this end, he advised that the Helms
Committee/NCGOP should hire observers to watch the opening and
closing-of the polls in such precincts. He suggested that it may
also be helpful to publicize the fact that a ?ballot security?
program is going to be undertaken. 

When the idea of a card mailing was raised, Farr told us-
that he explained to Locke and the others that while during the
1984 election, state law_provided that returned postcards may
serve as prima facie evidence that a voter was not properly
registered to vote in that precinct, such procedures had been
altered subsequent to that election so that a returned mailing
could no longer serve to support an election day challenge of
voters. He told the others that in light of this change, a
postcard mailing like the mailing conducted in 1984 would not be

 

 

51

particularly useful, except for use as evidence in post?election
challenges.g/

After this meeting, Locke, Davidson, and Moore then returned
to Davidson?s office to further discuss the 1990 ?ballot
security? program. This meeting focused upon the personnel and
material resources that would be required for the various ?ballot
security? projects that were under discussion. The discussion
involved, among other things, the type of information that would
be needed to produce a mailing aimed at voters who had moved from
the precinct in which they Were registered. Specifically, they
discussed the need for a summary analysis of the ?moved voter
data? that had been obtained from a company in Chicago that
specializes in providing ?change of address? and other
demographic information. 19/ According to Davidson, Mark
Stephens, President of Jefferson Marketing, Inc., was brought
into the meeting for this discussion to determine the
availability of the ?moved voter? data analysis, and the
resources that Jefferson Marketing would be able to allocate to
this effort. Although both Davidson and Stephens claim that they
cannot recall the details of their conversation conterning-the
?moved data? data, it appears likely that the idea of targeting
only black ?moved_voters? surfaced at this meeting since the

 

9/ In 1984, the 1984 Helms Committee sent a postcard to selected
voters throughout the state which contained an endorsement of
Senator Helms from a black minister in Raleigh and included the
instruction ?address correction requested? so that the card would
be returned if undeliverable. Apparently, the cards were never
used as a basis to challenge voters, possibly_because the
Department announced a few days prior to the election, as we did
this year, that we would have attorney observers in North
Carolina to help ensure a fair election process.

Apparently in response to the Helms Committee mailing, in
1985, the North Carolina legislature amended N.C. Gen. Stat.
163-88, the provision which governs the procedures for
election day challenges, to provide that returned mail ?shall not
be admissible evidence? in an electiOn day challenge. Prior to
1985, such mail was accepted as prima facie evidence that a voter
no longer resided at the address under which she was registered.

lQ/ MetroMail, based out of Chicago, received a statewide voter
registration file from the NCGOP in late August, 1990 and
appended, among other things, ?change of address? information and
a telephone number to each individual voter file. MetroMail
provided this information to the NCGOP pursuant to a contract
between the RNC and MetroMail to render such services to state
party organizations in all fifty states.

 

 

 

eventual request for the ?moved voter? analysis was in fact a
request for a summary of the data by race.

At some point during or immediately after the two meetings
involving Locke described above, a decision was made to retain
Locke to coordinate the ?ballot security? program. That such a
decision was made at this time is demonstrated by the fact that
during or at the conclusion of these meetings, Moore assigned
Ms. Amy Starling, a paid employee of the Helms Committee, to work
with Mr. Locke on the ?ballot security? program, and provided
Mr. Locke with office space within the Helms Committee
headquarters. .

Apparently Locke returned to Charlotte shortly after the
afternoon meeting and prepared a summary memorandum proposing a
schedule of activities and projects for the 1990 ?ballot . -
security? program.l;/ This memorandum was telefaxed to Davidson.
Davidson passed a copy of the fax to Moore, who in turn passed a
copy to Amy Starling. We have no evidence which suggests that
any representative of the NCGOP saw this faxed memorandum.
Davidson apparently'telephoned Locke soon after receiving the
memorandum and formally advised Locke to go forward with the
proposed program. Davidson claims that he cannot recall whether
he distributed Locke?s memorandum to others.

Locke returned to Raleigh on or before October 22, 1990 and
met with Jack Hawke and Effie Parnell of the NCGOP. At this
meeting, Locke and Davidson reviewed the projects planned for the
?ballot security? program, which, according to a memorandum dated
October 22 from Locke to Hawke included the mailing to ?moved
voters,? a press conference outlining state voter eligibility
requirements and federal and state penalties for election fraud,

 

ll/ We have not yet been provided with a copy of this
memorandum. Locke?s counsel has advised us that Locke possesses
a copy, but as noted above, will not provide us with the document
nor any other information absent a grant of use immunity with
respect to criminal prosecution. Davidson claimed he maintained
a ?ballot security? file while working at Campaign Management,
Inc., but that he left the file at his place of business. He
believes that file may contain this document. Over two months
ago, we asked counsel for Jefferson Marketing to determine if
such a file does exist,_and if so to provide it to us. As noted
above, we have been informed by counsel for the Jefferson
Marketing Companies that they will no longer voluntarily
cooperate with our investigation. We also requested this
document from the Helms Committee and the individuals we .
interviewed who worked for the Committee. While Starling and
Moore admit they saw and reviewed the document, they claim that
they no longer possess it. Their counsel advised us that the
Helms Committee did not have a copy, either.

?15_

 

 

 

and coordination of Republican ?poll watchers? throughout the
state to monitor election day activities in overwhelmingly
Democratic precincts which they considered ?at?risk.? 2/

As explained above, the postcard mailing consisted of two
separate mailings which employed distinct criteria for selecting
the voters to receive the postcard. One mailing of 44,130
postcards was directed exclusively to black voters who had a
change of address associated with their name, according to the
list acquired from MetroMail, the firm in Chicago which provided
such information pursuant to a contract with the RNC. No
postcards were sent to the over 220,000 white registered voters
who were so identified by Metromail.l;/ In light of the fact

 

lg/ With respect to the ?moved voter? mailing, the memorandum
specifically recommends that a letter should be mailed ?to voters
who have moved, but continue voting in the polling place
associated with their preVious address.? Apparently accompanying_
the memorandum at the time it was provided to Hawke and Pernell
were draft letters to the United States Attorneys outlining the 
proposed ?ballot security? activities. One of the activities set
forth in the letter was a ?Moved Voter Mailing,? described as a
?mailing to voters who have recently moved informing them of the
procedure for voting in their proper precinct on election day.?
As will be explained below, (see page 16, infra), although it is
unclear precisely what Jack Hawke's understanding of the ?moved
voter? mailing was at the time the memorandum and letters were
written and provided to him, his statement to the FBI and
statements to the press suggests that at some point prior to the
mailing, his understanding of the ?moved voter? mailing was
different from and.more detailed than the description set forth
in these materials. In other words, these documents clearly were
not the only information he received concerning the postcard
mailing program prior to the mailing of the postcards.

MetroMail's list is primarily based upon the national change
of address list compiled by the U.S. Postal Service. It also
uses lists from certain magazine clearinghouses which store
change of address information. Accordingly, unless an individual
who has moved has submitted a change of address to the postal
service or happens to have changed his address in connection with
certain magazines, his name will not appear on the MetroMail
change of address list as currently formulated.

Moreover, the change of address information provided by
MetroMail to the NCGOP in this case in all probability did not
produce an accurate list of voters who were improperly
registered. Briefly, MetroMail can only provide its service
based upon a benchmark list of names and addresses. In this
case, MetroMail was asked to compare its national change of




 

 

that race was the only criteria employed to select those voters
from the list of voters with a ?new? address (an address
different from the address contained in the statewide voter
registration file provided to MetroMail by the NCGOP), black
voters in almost every county throughout the state and of all
political affiliations and were sent postcards. Based upon the
information we received from MetroMail, approximately three 
percent of the black ?moved? voters were registered Republicans
and another three percent were registered Independents. The
remainder of the black voters who were sent postcards were
registered Democrats.

None of the subjects cf our investigation were able to offer
any legitimate factual predicate for mailing a postcard
addressing voter eligibility and the penalties for election fraud
exclusively to all black voters who-may have changed residences.

The postcards targeted at black ?moved? voters were sent to
the ?new? address and were mailed bulkwrate on October 29, 1990.
They did not inelude the disclaimer ?Paid for.by N.C. Republican
Party.? As explained below, the absence of the disclaimer from
this mailing appears to_have been a deliberate choice.

The other mailing of 81,446 postcards was targeted at
households with at least one registered democrat in 86 selected
precincts throughout the State. According to Doug Davidson, the
precincts were selected based upon a review of election returns
from the 1984 Senate contest between Senator Helms and Democratic
challenger James Hunt. Davidson referred to the document which
contained such returns as an ?abstract? and stated that in
addition to reporting the election returns by precinct, the
abstract also contained voter precinct?by-precinct voter

 



address list with statewide voter registration file compiled by
the NCGOP. Most of the voter registration information in the
NCGOP statewide file submitted to MetroMail was dated from
January, 1991., Accordingly, some voters who were identified by
MetroMail as having changing residences from the residences under
which they were registered to vote may have in fact already
submitted their new address to the appropriate county board of
elections subsequent to January, 1991 but before the November 6,
1990 election. - -

In addition, the NCGOP did not request that MetroMail
include the date of any change of address that it provided.
Thus, in this case, since MetroMail?s file contains change of
address information dating back as many as nine years, a change
of address identified by MetroMail may have reflected a move
prior to the move to the residence under which the voter is
currently registered.

_l7_

 

 

 

registration data by race, gender and party 
Davidson asserted that the selection process focused upon those
precincts in which Helms fared most poorly in the election, with
consideration given to the total numbers of registered voters in
each precinct as well. According to Locke?s proffer, the racial
composition of the precincts was also considered in selecting the
targeted precincts. Indeed, as of early 1990, black voters
constituted approximately 94 percent of the total number of 
registered Democratic voters within the 86 targeted precincts.

From the cutest, the NCGOP has asserted that the first?class
mailing was targeted at precincts with little to no Republican
presence. In fact, however, based on Davidson?s statements and
Locke?s proffer, it appears that the party affiliation of poll
officials at the respective precincts played absolutely no role
in selecting the precincts to target for the mailing. Indeed,
Davidson and others told us that they did not believe anyone
within the NCGOP or the Helms Committee had ever compiled or
attempted to compile such information about the individual
precincts.

This mailing was sent first-Class with address corrections
requested in order to enable those coordinating ?ballot security?
to collect the names of addressees whose cards were returned and
to distribute those-lists to precinct officials on election day
(see below). 

With respect to the mailing program, statements made by
Hawks and Parnell to the FBI during our investigation and to the
press, although somewhat inconsistent on certain points, reveal .
that they understood that the mailing would be targeted primarily
at black voters, and that the message on the card would address
state election law, but may not have known the precise details of
the mailing. Hawke stressed during his interview with the Bureau
that he had purposefully delegated responsibility for the entire
?ballot security? effort to Locke because of all of his other
campaign commitments and thus did not maintain close contact with
Locke during the final weeks.of the campaign. Indeed, Hawke told
the FBI that once he had Locke as a consultant, he ?let Locke run
with the mailing program.? Davidson?s testimony supports Hawke?s
characterization of his relationship with Locke as Davidson

 

lg/ Amy Starling, however, identified the document that was
apparently referenced to select the precincts as an abstract of
the election returns from the 1988 Presidential contest between
George Bush and Michael Dukakis. Starling confirmed that the
abstract utilized for ?ballot security? purposes contained
registration data reported by race and party affiliation. We
have outstanding requests of the Helms fer Senate Committee and
the Jefferson Marketing Companies to determine if this abstract
is in their possession, and if so, to provide it to us.

 

 

 

 

asserted that Locke had been authorized to conduct the ?ballot
security? program based on his own judgment without detailed
directions from Hawks and others at the 

 

lg/ Davidson?s testimony suggests that the Helms for Senate
Committee also felt that they had some type of relationship with
Locke and they too decided to defer to Locke?s judgment with
respect to the ?ballot security? program. The following exchange
took place during our interview: -

Rosenbaum:- Who was responsible for keeping
the Helms for Senate Committee
apprised of what was going on in
terms of ballot security?

Davidson: I talked to Statt Moore, who was
the campaign manager, and I
talked to Carter Wrenn, who was
a consultant, not a lot on this
issue, because at this time we
were very busy. It was like--I
want to say three weeks prior to
the election. And I think that
they felt like Ed was a?-you
know a good consultant who had
done this kind of work before in
the past and we would go with
his iudgment on the program.

While Hawke?s claim that he and thus the NCGOP delegated
full authority to Locke to conduct the ?ballot security? program
is fairly credible, such a claim by the Helms for Senate
leadership-lacks the same indicia of credibility. In this
regard, we have several discrete pieces of information suggesting
involvement in or knowledge of Locke?s-activities and decisions
with respect to ?ballot security? in general and the postcard
mailing in particular. Specifically, Davidson, who, as will be
seen below acknowledges personal involvement in the targeting
criteria and participation in discussions concerning the text of
the mailing,_testified in the exchange above that he kept Carter
Wrenn and Peter Moore apprised, at least to a certain extent, of
the ongoing ?ballot security? work, and later testified that
during the campaign he met with Wrenn and Moore on a daily basis
to discuss the progress of all facets of the campaign. Moreover,
as Wrenn confirmed, Wrenn was one of the primary individuals, if
not the primary individual, responsible for reviewing and
authorizing all political mailings for-Senator Helms. Wrenn and
Peter Moore both essentially confirmed the close working
relationship between themselves and Davidson, but nevertheless
denied that they had any knowledge of the specific details of the


_19_

 

The precise chronology of events and the involvement of
particular individuals is less clear after Monday, October 22, as
we have received a good deal of conflicting testimony.
Nevertheless, we have some basis to reach conclusions about the
process that led to the postcard mailing at issue.

Apparently, after the meeting with Pernell and Hawke, Locke
and Davidson engaged in further discussions concerning the
details of the postcard mailing. While we are not certain at
what level of specificity the two men discussed the text of the
mailings, we do know that prior to the mailing, Davidson
understood that Locke contemplated producing two separate
mailings;l?/ moreover, we are certain that Locke and Davidson

 


?ballot security? program or in particular, of the postcard
mailing prior to news accounts of the mailing.

lg/ The uncertainty regarding their discussion of the text stems
from the conflict between Davidson?s testimony and Locke?s
proffer on the subject. Davidson claims that at the time he and
Locke were discussing whom to target with the mailings, he
understood that the two separate mailing would include two
distinct messages: One mailing addressing voter residency
requirements was to be directed at black voters who may have
moved, and the other mailing containing a generic message urging
support for Helms and/or the GOP was to be sent to Democrats in
the selected precincts in which Senator Helms fared most poorly
in his 1984 re?election effort. Davidson testified that when
discussing the first mailing, Locke specifically mentioned the
transfer ballot procedures that permit voters who have moved to
another precinct within the county but not reregistered to vote
on election day, and that Davidson assumed that some explanation
of this procedure would be included in the mailing to black moved
voters. .

with respect to Davidson?s alleged understanding of the text
of the ?moved voter? card, while it is likely true that Davidson,
Locke and possibly others knew of and discussed the state
transfer ballot procedures, as suggested by the text of the card
itself, (see Discussion Section below), Davidson is not credible
when he asserts that he understood that a mailing aimed at black
voters was to include an accurate explanation of these 
procedures. If the aim of the mailing was to let ?moved voters?
know that many of them could vote, and to outline the procedures
for voting, one would expect the focus of the mailing to be
?moved voters? who were likely to vote for Helms. Instead,
Davidson posits that the NCGOP in the last weeks of the campaign
decided to spend several thousand dollars to advise the group of


_20_

 

 

 

collaborated to some extent on the targeting_criteria that would
be employed for the two mailings. Indeed, Davidson confirmed
during his interview that he specifically approved of the
decision to send the ?moved voter? mailing only to black ?moved
voters,? and that although Locke ultimately chose the precincts
to target for the precinct-based mailing, Davidson knew at the
time that Locke was going to select those precincts with primary
consideration given to the number and percentage of Democratic
voters in a precinct and the prior level of support for Helms.
Locke's proffer reveals that the racial composition of the
precinct also played a primary role in the selection process for
the first?class mailing.

In addition, we know that Davidson personally instructed a
computer programmer for Comp., Inc., to create a computer tape
containing the address labels for all black ?moved voters.?
Davidson also oversaw the computer work for the first?class
mailing. The document identifying the precincts to be targeted_
for the first~class mailing was delivered to a computer
programmer by Amy Starling. -

At some point between October 22 and 24, Davidson and Locke
spoke to an account representative at Discount Paper Brokers,
Sheila Talton, to coordinate the actual production of the
postcard mailing. Davidson claims that this brief meeting with
Talton and Locke marked the last personal involvement in the
postcard mailing_until his participation in the sorting of
returned postcards during the week prior to the election (see
below). -

Either during the foregoing meeting or a later encounter,
Locke was informed by Talton that if he.wanted to mail the cards
by October 26, she would need a draft of the text immediately.
At that point, according to Locke's proffer, Locke went to an
office belonging to the Helms Committee and, using the State
Elections Code as a reference, drafted the text of the card.

While Locke?s proffer suggests that this was the first and
only time he devoted any attention to language that would be on
the card and to state law governing voter eligibility for moved

 


voters most likely to vote for Democrats that may be entitled to
vote even though they have moved.

As to his alleged understanding of the second card, his
statements appear to conflict with Locke's proffer and other
individuals? testimony. Absent Davidson?s statement, the
evidence indicates that only.one message was contemplated for
both cards.

_21_

 

 

voters and the questions posed to voters when they present
themselves to vote, other evidence belies such a suggestion.

Most importantly, Johnnie McLean, the assistant to the
Director of the State Board of Elections has told us that Ed
Locke visited the Boardfs office prior to the mailing of the
postcards and that she and Locke discussed the transfer ballot
provision in the North Carolina Elections Code at that time. In
fact, she recalls showing Locke the transfer ballot provision in
the Elections Code. She also recalls Locke discussing a sign
that he had seen in Mecklenburg County at a past election, which
was placed at the polling place and contained similar language to
the criminal penalties provision included in the postcard. Locke
commented that he believed this type of postcard made people
?stop to think.? Davidson?s testimony that Locke discussed the
transfer ballot provisions with him prior to the drafting of the
card also conflicts with Locke?s suggestion that he had not
meaningfully considered the relevant provisions of state law
prior to actually drafting the text during this short period.-

In addition, a letter drafted by Locke, which contained
accurate information regarding the questions posed to a voter
upon presenting himself to vote, was mailed only a few days after
the postcard mailing. This letter, directed at selected precinct
officials across the state (possibly only Democratic officials)
accurately advised that a precinct official is only required
under state law to ask a voter?s name-and address. Moreover,
while this mailing also included an incomplete statement 
concerning voter residency requirements, the statement in the
letter differs from the postcard version of the law and appears
to be a less threatening formulation. All of the evidence set
forth above creates the strong impression that the drafting of
text of the postcard was a far more deliberative process than
Locke?s proffer intimates. 

After having the text typed by a Jefferson Marketing
employee, Locke gave the draft to Talton. The typed draft
provided to Talton by Locke was typewritten in all capital
letters, but included handwritten instructions to the artist to
boldface the caption ?Voter Registration Bulletin? and to use
lower case letters where appropriate. The typewritten draft did
not include the disclaimer ?Paid for by N.C. Republican

Party.? 7/

 

The circumstances surrounding the absence of the disclaimer

on the bulk-rate postcard and the presence of the disclaimer on

the first-class postcard has been the subject upon which we have

reCeived the greatest degree of conflicting testimony. We have

been told by Jack Hawks that the absence of a disclaimer was a

printing error and was not included in only ten percent of the




 

 

While we do not know who reviewed this typewritten draft, we
know that while the text that appears on the final version of the
card is the same as in the draft version, the final version has
different markings than appeared on Locke?s typed draft
Specifically, one of the critical sentences of the text, ?You
must have lived in that precinct for the precious thirty days, or
you will not be allowed to vote,? is underlined in the final
version of the text, but not in Locke?s draft. Additionally,
several letters which are capitalized in the final version were
accompanied by no such instructions on Locke?s draft.l?/

 



cards. Sheila Talton provided us with 45 minutes of internally
inconsistent testimony concerning the disclaimer in which she 
essentially stated that a miscommunication that occurred between
herself and the printer led to the omission of the disclaimer on
the bulk?rate card.

The most reliable testimony, obtained from the president of
the printing company, directly contradicts the statements offered
by Hawke and Talton on the subject. Roger Jones, President of
Bedford Printing, provided us with the artwork for the bulk?rate
card received from Discount Paper Brokers, which did not include
a disclaimer. In addition, Jones"contemporaneous notes of his
telephone conversations with Talton about this printing order
reflect that he was specifically instructed not to include a
disclaimer on the bulkmrate card. Conversely, his notes reflect
that he was instructed to place a disclaimer on the first?class
card; the disclaimer was typeset and pasted on the first-class-
card in preparation for printing by a Bedford printing employee.
Moreover, Jenes informed us that he never received a complaint
from anyone concerning his handling of the postcard printing.

Jones? story is corroborated by Locke?s proffer; Locke
apparently would tell us that when he gave Talton the draft of
the card, he asked if it needed a disclaimer; Talton responded
that she did not believe that the mailing required a disclaimer
but that she would check with someone else. She later told Locke
that she had been advised that the mailing did not require a
disclaimer. Locke?s proffer does not,_however, include an 
explanation concerning the presence of a disclaimer on the first-
class card. . 

lg/ Julie Graw, the former graphic artist for Discount Paper
Brokers, who typeset the text and prepared the artwork for the
postcard, recalls that Robert Rosser, President of Comp., Inc,,
and/or Calvin Kervin, President of Discount Paper Brokers, both
reviewed the draft of-the text and the draft of the artwork.

_23_

 

 

Discount Paper Brokers contracted with outside firms to
print the card, print the mailing labels, affix the labels to the
cards, and sort the cards in preparation for mailing. Talton
personally arranged for the printing of the card as well as the
attachment of the mailing labels to the cards and the sorting of
the cards. Talton, did not, however, contract for the printing
of the labels themselves. We specifically requested the
Jefferson Marketing Companies to identify the individual(s)
responsible for this phase of the project over one month ago, but

they have yet to respond to our request.l9/

As noted above, approximately 16,000 first-class postcards'
were mailed from the Raleigh Post Office on October 26 and 44,130
bulk-rate cards and 64,000 first?class cards were mailed on
October 29. 

After the mailing of the cards, attention turned to the
sorting of the returned first?class cards for use on election

 

. - .
Moreover, she recalls receiving a marked-up draft of the artwork
from which she was instructed to make corrections. She believes
that the corrections included only punctuation and capitalization
changes. Grew does not know who made the corrections on the- 
artwork draft, but.noted that, as a general rule Carter Wrenn and
Tom Ellis, an attorney with Maupin, Taylor, Ellis Adams,
generally reviewed and made the final corrections to political
mailings during the campaign and that these two individuals were_
in Wrenn?s office within the Helms for Senate Committee 
headquarters at the time she prepared the artwork. As noted
above, Wrenn denies any knowledge of or.participation in the
postcard mailing. We did not speak with Ellis as we were
provided with no reliable information connecting Ellis to the
postcard mailing. Although Graw appears fairly credible, her
testimony is clouded to some extent by the fact that she
specifically recalls preparing the artwork for the postcard from
a handwritten text rather than the typed text; such a claim does
not comport with Talton?s explanation of the production of the
letter. .

lg/ The President of Management Data Systems, the outside firm
who has been identified as the outfit who printed the labels,
told the Bureau that he did in fact produce the labels for the
postcard mailing and that Calvin Kervin placed the order and
served as his sole contact at Discount Paper Brokers. The
documents that we have obtained also suggest that Kervin was the
primary person responsible for obtaining the address labels for
the postcard mailing. Kervin, however, has denied any
involvement in the production of the labels.

 

 

day. Davidson testified that he and Locke planned to collect the
names of all voters whose cards were returned, to distribute the
list of voters to the precinct judges in the respective precincts
and to request that they ensure that such voters did not cast a
fraudulent ballot. Specifically, they envisioned asking the
precinct judges to verify an identified voters? address, and to
instruct that person concerning the procedures for voting if he
in fact no longer lived within the precinct.gg/

To accomplish this task, they solicited assistance from
several employees of the Jefferson Marketing Companies and
volunteers and employees of the Helms Committee. Beginning
around October 30, these individuals began sorting the returned
first?class cards by precinct and the computer programmers
matched each returned card with an identification number to
enable the efficient printing of voter lists. The processing of
the returned cards continued until November 2. On that date,
Farr advised us in response to the initiation of our
investigation that he had recommended that the efforts to Compile
voter lists for use on election day be abandoned. No lists of-
voters based upon the returned cards were ever generated.

Also during the week preceding the election, an attempt was
made to resend several thousand first-class cards directed
primarily to black voters in Mecklenburg County which had been
erroneously addressed.. Apparently, on October 29 or October 30,
persons at Jefferson Marketing and/or Helms for Senate were
'notified that the post office in Charlotte had retained
possession of several thousand postcards that contained faulty
addresses. On October 31, a computer programmer for Comp, Inc.
corrected the computer programming error that had caused the
printing of the erroneous addresses. On the same day, new
address labels along With a copy of the postcard were sent to a
mailhouse in Charlotte with instructions to retrieve'the unmailed
cards from the Charlotte post office and to affix the new labels
to the cards. Information obtained by the Bureau reveals that
Calvin Kervin coordinated this effort.g;/ Kervin?s participation
is especially significant since Kervin did not disclose his 
involvement to us-when we asked about his participation in the
postcard mailing after the initial mailing of the cards. In
addition, the timing of this effort is particularly telling since

 

gg/ This strategy for challenging voters was apparently
undertaken in response to the amendment to state law governing
election day challenges, which precludes the use of a returned
mailing as evidence of inValid registration for challenging a
voter. See footnote 6, supra.

21/ The information obtained by the FBI is corroborated by
receipts obtained from the NCGOP which shows that Kervin ordered
the reprinting of the address labels for the postcard mailing.



 

 

the press accounts questioning the accuracy of the postcard text
had already surfaced at the time an attempt was made to remail
the Mecklenburg County postcards. In the end, the cards were not
remailed as the Charlotte mail operation was unable to retrieve
the cards from the post office.

On October 31, Hawks held a press conference in which he was
barraged with questions concerning the postcard mailing. He
expressly claimed responsibility for the postcard and stated that
the postcard was one component of the ballot security
program to ensure a fair election. At the press conference, he
explained that the mailing had been directed at moved voters in
heavily Democratic precincts.

Apparently immediately after the press conference Hawke
called Carter Wrenn to inform him that he had just been barraged
with questions concerning the text of the postcard and the 
selection criteria for the cards. ?Wrenn claims that he then
telephoned Alex Brock, Director of the State Board of Elections,
to solicit his opinion concerning the text of the postcard.
According to Wrenn, Brock explained the transfer ballot
procedures to Wrenn and told him that the card was ?ambiguous?
and could have been clearer. As noted above, subsequent to this
conversation, Brock issued a press release and told the FBI he
did so to ?neutralize and clarify? the ?inaccurate? information
contained in the second paragraph of the postcard.

According to Locke?s proffer, Hawks contacted Locke on
October 30 or October 31 to inquire about the postcard mailing.
Locke?s proffer, however, does not provide the details of this
conversation.gg/ - .

'In spite of Brock?s_statements to Wrenn, Hawke?s
conversation with Locke, and the extensive press coverage of the
mailing, neither the NCGOP nor the Helms Committee issued any
statement clarifying the postcard or disassociating their
organizations from the text of the card or the targeting Criteria
that had been_employed to select the voters who were sent
postcards. In fact, the NCGOP continued to take responsibility
for the card and defend the mailing as a valid part of its
?ballot security? program. 

As to other ?ballot security? activities prior to and during
the election, on November 5, Locke held a meeting with
individuals scheduled to serve as GOP observers in the polling
places and advised them not to challenge any voters in light of

 

gg/ Significantly, neither Hawks nor any other subject with whom
we have spoken has claimed that he was misinformed by Locke 
concerning the postcard mailing subsequent to the actual mailing
of the postcards. 



 

 

the pledge to the Justice Department concerning election
'day challenges.g?/ During our coverage of the election in
Raleigh, we were informed of no voter challenges by NCGOP
election workers.

In addition, Locke apparently was never admonished by the
NCGOP or Helms for Senate with respect to the mailing. In fact,
he was paid in full for his services subsequent to?the
November 6, 1990 election. Moreover, Davidson told us that when
he last spoke to Locke soon after the election, they exchanged
congratulatory wishes for their contributions towards Senator
Helms re?election.

E. Impact on Voters

Predictably, many voters who received bulk?rate postcards.
were confused and frightened by the message. The directors of
the county boards of elections in Durham, Guilford (Greensboro)
and Mecklenburg (Charlotte) counties, areas in which significant
portions of the targeted voters resided, informed us that they
were inundated with phone calls from concerned voters who
received the poetcards. They reported that several callers
clearly sounded upset and confused about the information
contained in the card. They emphasized that several of the
callers that seemed particularly disturbed about the card
believed that the bulk-rate card (the edition without the
disclaimer) had originated from the county board of elections
office. They further noted that virtually all of the callers
were in fact eligible to vote either by virtue of the fact that
had moved within the county or that.they still lived at the
address under which they are registered.

Black elected officials and community leaders also stated
that they were contacted by several voters who expressed a great
deal of distress Concerning the message on the card. E. Pearlman
(B), a member of the County Board of Commissioners,
advised us that she received numerous.phone calls from voters in
her district concerning their eligibility to vote in the November
6, 1990 election. She quoted one woman as telling her want to
go vote, but don?t want to go to jail.? She said she adVised
this woman, who had changed residences within Guilford County, as
well as others eligible to vote, that the card was an attempt to
intimidate them and discourage them from participating in the
election. .

 

23/ Locke was referring to the pledge which you had secured from
Tom Farr on November 5, 1991, that the NCGOP would not use the
returned postcards as a basis to challenge voters on election
day.

_27_

 

 

Our own contacts with black voters who received the bulk?
rate card also reveals that at least some of these voters were
frightened by the card, and had they not been provided accurate
information prior to the election, may not have participated.

For example, Julia Vaughan (B), a registered voter in Durham
County, who had changed residences within the county but had not
yet reported the change to the board of elections, stated that
she was disturbed upon receiving the postcard and'was concerned
that she would not be able to participate in the'election.
Indeed, she claimed that she was so upset that she had difficulty
sleeping that evening. The next day she contacted the Darham -
County Board of Elections and was informed that she was in fact
eligible to cast a transfer ballot. 

Another registered voter Mary Clark (B), stated that
although she was not concerned that she would be ineligible to
vote upon receiving the card, the section of the card describing
the questions that would be asked voters caused her some concern
that she may be asked more questions than usual at the polls. 

Most of the voters with whom we spoke who received first?
class cards were black eleCted officials and thus viewed the 
cards as a crass attempt to intimidate black voters. Several of
the officials, including State Senator James Richardson (B),
stated that less sophisticated voters and elderly voters who have
personally lived through the period of black disenfranchisement
and state-Sponsored discrimination at the polls may well_have
been intimidated by the mere receipt of a card that warns of
criminal penalties in connection with voting. According to the
Charlotte Observer of November 1, 1990, Ernie Thurston (B), a
precinct official from Asheville, expressed similar sentiments
concerning the likely impact of the postcard. Thurston remarked
that the cards ?would discourage elderly voters, new voters, and
people who don?t Vote regularly.? In sum, the blaCk community 
leaders with whom we spoke emphasized that this type of mailing,
which makes a reference to criminal penalties in connection with
voting, may create fear in the most vulnerable of black voters,
and without active intervention to dispel those fears, may
ultimately dissuade some of these voters from participating in
the electoral process. Indeed, your press statement on November
5, 1990, in which you labeled the postcards ?misleading, if not
totally inaccurate,? and you announced the assignment of
Department attorneys to monitor election day activities likely
dissipated the most serious negative potential of the postcard~~
keeping eligible black voters from participating in the eleCtoral
process.

Discussion

The foregoing information demonstrates that those
individuals and organizations responsible for the postcard



 

 

 

mailing engaged in an act cf intimidation of voters and
threatened voters in the exercise of their voting rights. Such
conduct violates both 42 U.S.C. 1971(b) and Section 11(b) of the
Voting Rights Act, 42.U.S.C. 1973i(b), civil statutes which
prohibit non-violent voter intimidation.

The former statute is part of the Civil Rights Act of 1957,
and prohibits intimidation, threats, or coercion, as well as
attempts of such conduct, ?for the purpose of interfering with
the right? to vote for candidates in federal contests. Section
11(b) includes similar language to that of 42 U.S.C. 1971(b),
except that, Section 11(b) does not include the requirement that
the intimidation, threat or coercion be for ?the purpose of 
interfering with the right to vote? and it does not explicitly
confine the terms of the statute to federal contests. The
language of the statute and its legislative history reveals_that
Section 11(b) was enacted in large part to ease-the Government?s
burden in prosecuting voter intimidation claims by removing the
necessity to prove subjective purpose to intimidate, threaten, or
coerce in order to prove claims of non-violent voter
intimidation, threats or coercion. I shall discuss in?turn the
legal standard governing each statute and the facts which satisfy
the applicable standards. 

A. 42 U.s.c. 1971(b).

The foregoing information demonstrates that those
individuals and organizations responsible fOr the mailing have
violated 42 0.8.0. 1971(b). This section provides:

No person, whether acting under color of
law or otherwise, shall intimidate, threaten,
coerce, or attempt to intimidate, threaten or
coerce,? any person for the purpose of
interfering with the right of such other person
to vote or to vote as he may choose, or of
causing such other person to vote for, or not to
vote for, any candidate for the office of
President, Vice President, presidential elector,
Member of the Senate, or Member of the House of
Representatives, Delegates or Commissioners from
the Territories or possessions, at any general,
special, or primary election held solely or in
part for the purpose of selecting or electing any
such candidate.

42 U.S.C. 1971(b).
1. The Legal Standard

The threshold question that must be addressed under section
1971(b), is whether a sufficient nexus between the proscribed

 

 

 

   

conduct and a federal election contest can be established to
proceed under the statute. This jurisdictional prerequisite is
clearly satisfied. The postcard mailing had the potential to
affect federal elections throughout the state since it was
addressed to the qualifications for casting a ballot for any
candidate, including candidates for federal office. See
generally United States v. Bruce, 353 F.2d 474 (5th Cir. 1965)
(1971(b) held applicable without inquiry of connection with
federal contest where white landowners engaged in economic
coercion by preventing black insurance agent involved in voter
registration efforts from entering onto property to engage in
business transactions with black sharecroppers who lived and
worked on landowners property); United States v. Beat 288 F.2d
653 (6th Cir. 1961) (white landowners and white-owned businesses
conspiring to exert economic pressure on black sharecroppers for
attempting to register to vote found in violation of section
1971(b) without.inquiry into impact on federal election). (Ku
Klux Klan enjoined from engaging in pattern and practice of
intimidation, threats and coercion against black citizens for
attempting to register to vote and exercising other 
constitutionally protected 

 

With respect to other threshold elements under section
1971(b), some courts have held that section 1971(b) applies only
in those circumstances in which the alleged intimidation, threat
or coercion is racially motivated. See e.g. Brooks v. Nacrelli,
331 F. Supp. 1350, 1352 (3.0. Pa. 1971), aff?d 473 F.2d 955 (3d
Cir. 1973); Gremillion v. Rinaudo, 325 F. Supp. 375, 378 (E.D.
La. 1971); Cameron v. Johnson, 262 F. Supp. 873 (S.D. Miss.
1966). These decisions appear to be predicated on the belief
that Civil Rights Act of 1957 was passed to enforce the
constitutional guarantees of the Civil War Amendments
(Thirteenth, Fourteenth, and Fifteenth), and that consequently,
the scope of the statutes should correspond with the main purpose
of the amendments~?the eradication of racial discrimination. 

 

There is a good deal of doubt concerning the correctness of
confining section 1971(b) to racially motivated conduct,
especially in light of the clear reference in the House report
accompanying the Civil Rights Act of 1957 to Congress' power
under Article I, Section 4 of the Constitution to regulate
federal elections, a power independent of its authority to
enforce the Civil War Amendments. See Original Knights of the Ku
Klux Klan, 250 F. Supp. 330, 334 (E.D. La. 1965).

We need not persuade a court on this issue, however, in
order to proceed under section 1971(b), because we can show that
the conduct at issue was racially motivated. With respect to the
bulknrate mailing, within the group of approximately 260,000
?moved voters? known to the prospective defendants, only the
44,000 black voters were selected to receive postcards. As to
the first?class cards, the prospective defendants sent the

 

 

postcards to Democratic households in 86 precincts, with the
clear knowledge and understanding that black voters constituted
over 90 percent of the registered voters in these precincts
cumulatively. The primacy of race in the selection criteria
clearly places the postcard mailing scheme within the scope of a
statute which reaches only racially motivated conduct.g?/

In addition to the apparent requirement of proof of racial
motivation, proof of essentially two ultimate facts are required
to prevail under section 1971(b): that there was an
intimidation, threat, or coercion, or an attempt to intimidate,
threaten or coerce, and (2) that the intimidation was for the
purpose of interfering with the right to vote.? United States v.
McLeod, 385 F.2d 734 (5th Cir. 1967) (quoting United States v.
Board of Education of Greene County, Mississippi, 332 F.2d 40, 46
(Rives, J., concurring)).

A review of the caselaw suggests that we can successfully
establish that the prospective defendants in this case engaged in
an act of intimidation-of black voters and threatened such voters
for the purpose of interfering with the_right to voteaggf With
respect to the act of intimidatiOn, there are no.cases under
section 1971(b) which provide a working definition for the term
?intimidate.? However, cases arising under other federal
statutes which contain the term ?intimidation? provide useful

 

33/ As we established in Garza v. County of Los Angeles, 918
F.2d 763 (9th Cir. 1990), cert. denied, 111 U.S. 681 (1991),,
proof of racial animus is not necessary to establish purposeful
racial discrimination under the Equal Protection Clause of the
Fourteenth Amendment or the Voting Rights of 1965, as amended.

gg/ Although allegations of intimidation and a threat in this
case are appropriate, I devote the great majority of the analysis
which follows to the allegation of intimidation. I do so partly
because it is awkward to repeat the two terms throughout the
memorandum but also in part because the case law provides a
definition of intimidation which is clearer and is more
applicable in the nonviolent context (see below) than any
definition provided for the term ?threat? in the context of the
several federal statutes which use the term. Notwithstanding the
disproportionate attention devoted to the term ?intimidation,?-
the actions undertaken certainly can be characterized as an
unlawful ?threat? as that term is commonly understood and thus
should be alleged in our complaint. To establish that the
postcard constituted a ?threat,? which is defined in Webster?s
Ninth New Collegiate Dictionary as ?an expression of intention to
inflict, injury, evil, or damage,? we will want to focus upon the
purpose and reasonable effect of the inclusion in the postcard of
the sentence outlining federal criminal penalties for providing
false information to election officials.



 

 

authority that can reasonably be relied upon in construing
?intimidation? in this context.

At least two courts have construed the term ?intimidation?
in the context of 18 U.S.C. 2113(a) the federal bank robbery
statute. In United States v. Baker, 129 F. Supp. 684, 685 (S.D.
Ca. 1955), the court essentially held that the term
?intimidation? means_?putting in fear.? Relying_on Baker, the
Fifth Circuit similarly found in United States v5 Jacguillon 469
F.2d 380, 385 (5th Cir. 1972), cert. denied,.410 U.S. 938 (1973),
that as used in section 2113(a), intimidation means ?to make
fearful or-to put into fear.?

 

The First Circuit further refined the definition of
?intimidation? announced in Baker and Jacguillon in United States
v. Norton, 808 F.2d 908 (lst Cir. 1987), a case involving 18
U.S.C. 844(d), which prohibits the interstate transportation of
explosives ?with the knowledge or intent that it will be used to
kill, injure, or intimidate any individual.? The court in Norton
reversed the defendant's conviction on the grounds that the jury
had been erroneously instructed that the term ?intimidation?
means fto scare or frighten a person for an improper purpose.?
The court held that a proper instruction on ?intimidation? under
844(d) must include the notion that the act to scare or frighten
be designed to ?affect future conduct.? id; at 909.g?/

 

In reaching this conclusion, the court stressed that a
definition which requires ?putting in fear? designed to affect
future conduct is consistent with the dictionary definitions of
the term. Webster?s Third New International Dictionary, for
example, defines ?intimidate? as ?to make timid or fearful; .
inspire or affect with fear; esp. to compel to action or inaction
(as by threats). re. at 910. The court also noted that its
interpretation of ?intimidate? oomports with Baker and Jacguillon

 

gg/ This issue arose in a bizarre context. The defendant,
Norton, angered by the theft his radar detector from his car,
decided to lay a trap for the next unsuspecting thief by placing
a fake radar detector in his car that would explode and spray
indelible ink when plugged into a socket. As Norton expected,
someone indeed stole the fake detector, but before having an
opportunity to use it, the thief was apprehended by the police
and the detector was retrieved. However, the police officer
tested the detector in his car upon its retrieval, at which point
the detector exploded, inflicting the officer and his passenger
with fairly serious injuries. Norton claimed at trial that in
setting up the trap, he did not intend to hurt anyone nor affect
the thief?s_behavior in any way; he simply intended to scare or
frighten the thief. Thus, the question whether ?intimidate? must
include the desire to affect future behavior was critical in the
case. 



 

 

 

since ?coercion was inherent in the conduct charged? in those
cases. lg. at 911.

Most significantly, the court reviewed all other criminal
statutes in which the term ?intimidate? appears, including 18
U.S.C. 594, the criminal counterpart to 42 U.S.C. 1971(b), and
?found no instance in which interpreting that word to include the
notion of affecting conduct would be inconsistent with the
relevant statute?s intent.? id; at 910. The First Circuit is
certainly correct on this point with regard to 18 U.S.C. 594, and
thus 42 U.S.C. 1971(b) as well, as the statutes? sole concern is
to proscribe conduct that would affect another?s future conduct,
i.e. the exercise of the franchise. Thus, interpreting
?intimidation? under section 1971(b) to mean putting in fear,
making timid, or frightening in order to interfere with or deter
the exercise of the franchise appears consistent with the
precedent construing and with the purpose of the proVision.

The case law suggests that there are at least two possible
approaches to establishing that an act of intimidation has?
occurred: (1) showing that the alleged misconduct was undertaken
with an intent to intimidate, Jacgillon, supra at 382 (?proof of 
actual fear is not required in order to establish intimidation?);
(2) establishing that the alleged misconduct had an intimidating
effect on the targeted individuals, see McLeod, 385 F.2d 734,
740~41 (5th Cir. 1967) (finding that baseless arrests and
prosecutions of blacks constituted acts of intimidation based
upon clear coerciVe effect of such conduct). The evidence relied
upon to establish the purpose to intimidate will also prove the
second prong of section 1971(b) in this case-~that the act of
intimidation was undertaken for ?purposes of interfering-with th
right to vote?--since the postcard mailing is confined
exclusively to the subject of voting rights and thus the
intimidation can be motivated by no other reason other than to
interfere in the right to vote. -

2. Evidence of Intentional Intimidation

A confluence cf factors demonstrates that the postcards were
intended to instill fear and confusion in the black voters
targeted to receive the cards concerning their right to cast a
ballot on election day in order to achieve the ultimate objective
of decreasing black voter turnout on election day.

a. The postcard text

The language on the card is of course of primary importance
in considering the intent behind the mailing of the card. Here,
the fact that the card contains inaccurate and incomplete
statements of the law coupled with a statement setting forth the
maximum federal criminal penalties for providing false
information to an election official is probative of an intent to



 

 

 

 

 

frighten and confuse the recipients of the cards and ultimately
to dissuade them from casting a ballot. -

Again, the card contains an inaccurate and misleading
statement regarding a registered voter's right to vote in an
election where the voter has moved from the precinct in which he
is registered. Contrary to the statement on the must
have lived in [the precinct in which you are registered] for at
least the previous thirty days or you will not be?allowed to
vote?--a registered voter in North Carolina may be able to vote
even if he has not lived in the precinct in which he is
registered for thirty days preceding the election. If the voter
has removed from the precinct in which he is registered more than
30 days before the election, but moved to another precinct within
the same county, then the voter can avail himself of the transfer
ballot procedures in place in every_eeunty and cast a ballot: If 
the voter has removed from the precinct in which he is registered
within_thirty days of an election, he is authorized under state .
law to cast a ballot in the precinct in which he is registered.-

As noted above, the card also contains misleading statements
concerning the inquiries that will be made of voters when they
present themselves to vote. State law provides that a poll
official ask a voter?s name and address, not period of residence,
and several election officials with_years of experience in the
administration of elections have told us that they know of no
jurisdictions which instruct their poll officials to ask a voter
the length of time such voter has lived within the precinct.

The inaccurate and misleading statements must be considered
against the backdrop of the warning on the card that providing
false information constitutes a federal crime ?punishable by up
to five years in jail.? It is this combination that creates a
strong inference that those responsible for the card desired to
instill fear and doubt into the minds of the targeted voters
concerning their right to vote on election day and the
interrogation they will be subject to at the polls if they
attempt to cast a ballot. 

Reinforcing the inference Created by the language itself is
evidence that the drafter(s) of the card, Ed Locke and possibly
others, knew that the card was false and misleading when they
drafted the card. We need look no farther than the text itself
for such evidence. The first line of the postcard states: ?If
you moved from your old precinct over thirty days ago, contact
the County Board of Elections for instructions for voting on
Election day.? This statement clearly reflects that the
drafter(s) knew that in the State of North Carolina, voters who
have moved outside of their voting precinct more than thirty days
before an election, may nevertheless be able to vote in that
election. Such knowledge is corroborated by the testimony of
Doug Davidson, who testified that he and Ed Locke discussed the

_34_

 

 

transfer ballot provision under state law prior to the drafting
of the card and by the testimony of Johnnie McLean, who told us
that she and Locke discussed the transfer ballot provision in the
North Carolina Elections Code. In fact, she recalls showing
Locke the transfer ballot provision in the Elections Code. The
conclusion that Locke knew of the existence of transfer ballot
procedures is further underscored by the description in the draft
letter to U.S. Attorneys which accompanied the October 22, 1990
memorandum from Locke to Hawke. In the draft letter apparently
produced by Locke, the proposed ?moved voter mailing? is
described as a mailing to ?voters who have recently moved
informing of the procedure for voting in their proper precinct on
election day.? Inherent in this description is an -
acknowledgement that a procedure exists for moved voters to cast
a valid ballot on election day.

In addition, we have some evidence that the card was 
reviewed by a lawyer and campaign officials presumably familiar
with state election law. Robert Hunter, an attorney in
Greensboro and former Chair of the State Board of Elections, 
advised us that Locke told him during a conversation concerning
the propriety of the card that the card had been reviewed by an
attorney before being.mailed. Moreover, we have some information
that Suggests that individuals within the Helms campaign and/or
principals of the.Jefferson Marketing Companies reviewed the card
and made some changes prior to the mailing of the card.

Of equal_significance is the fact that at least one
executive of the Jefferson Marketing Companies was directly
involved in attempting to resend erroneously addressed first-
class postcards to residents of Mecklenburg County on October 31
and November 1, a time period contemporaneous with the initial
press accounts and inquiries concerning the accuracy of the text
of the card. Thus, whatever the extent of any individual?s
involvement in the drafting or review of the card, anyone
involved in the attempt to resend the cards on October 31
certainly knew that the card contained inaccurate information, or
at a minimum, knew serious concerns had been raised regarding its
accuracy. 

In addition to the evidence that the drafter(s) knew they
were disseminating false information through the postcard, we
also have information which suggests that the drafter(s) included
the provision concerning criminal penalties specifically to
heighten the fear and apprehension of the targeted voters
concerning their exercise of the franchise. There is evidence
that Locke, apparently the individual primarily responsible for
the language on the card, understood the likely effect of the
inclusion in the card of a warning concerning federal penalties
for giving false information to an election official. As noted
above, according to Johnnie McLean, administrative secretary at
the North Carolina State Board of Elections, Locke spoke to her



 

I

concerning a sign he had seen outside of a polling place in
Mecklenburg County which contained similar language to the
federal penalties provision included in the postcard, and
commented that the sign made people ?stop to think.? Locke?s
statement to McLean strongly suggests that the card was intended
to instill fear and apprehension in the minds of black voters
concerning their right to vote in the November 6 general
election. The foregoing information presents a fairly compelling
case that those individuals primarily responsible,for the
postcard mailing knew at the time the card was mailed (and
remailed) that it was not an accurate reflection of the law
regarding the rights of certain voters to cast a ballot in the
election.

The apparently deliberate choice not to include a disclaimer
on the bulk?rate card is also probative of an intent to frighten
black voters concerning their right to cast a ballot. Without a
diSclaimer, the postcard, as the designers certainly anticipated,
was reasonably viewed as a card from a governmental entity.

This perception undoubtedly increased the legitimacy of the card
in the eyes of the targeted voters and thus likely created 
heightened fear and concern about.their eligibility to vote. It
is reasonable to assume that the designers of the card understood
that the absence of-a disclaimer would increase the legitimacy of
the card in the eyes of many of the targeted voters and thus
would enhance the likelihood that such voters would be dissuaded
from participating in the election.

b. Targeting Criteria

The targeting criteria employed for both sets of cards are
suggestive of an intent to intimidate and threaten or otherwise

interfere with the voting rights of the targeted recipients.
Bulk-Rate Cards

As outlined above, the bulk?rate cards were sent exclusively
to the black voters who had a change of address associated with
their name (18.8% of the total number of voters identified as
having a ?change of address?), and were sent to the voters? ?new?
address.gZ/ Doug Davidson confirmed that no other factors, such
as the geographic location from which the voter had apparently

 

21/ I place ?new? in quotations since given the fact that
MetroMail, the firm which provided the NCGOP with the address
changes, maintains change of address information for as long a
nine years, it is conceivable that the address change provided by
MetroMail predates the address contained in voter registration
files. In any event, the NCGOP and others clearly operated under
the assumption that the address change provided by MetroMail was
more recent than the address within the registered voter files.



 

 

'moved, were considered in seleCting the voters to receive the

cards. Consequently, tens of thousands of black voters targeted
to receive cards were in fact eligible to vote under the state?s
transfer ballot procedures, assuming they lived at the ?new?
address at the time of the election. Specifically, our analysis
reveals that anywhere from 22,000 to 31,000 of the 44,000
targeted voters had moved within the county in which they were
registered.g?/ It is likely that this is the group of black
voters that the decisionmakers were particularly?interested in
reaching, since voters who moved within the county are the most
likely group to attempt to vote at their ?old? polling place.

In addition, since the cards were sent to the voters? ?new?
addresses, the decisionmakers clearly had a desire for the group
of voters who were likely eligible to vote on election day to
receive the card. Given the text of the card, this undoubtedly
reflects a desire to frighten and dissuade eligible voters from
casting a ballot on election day. -

Moreover, as would be expected from a selection process
based only upon race and change of address, the black voters
targeted to receive cards resided in every corner of the state,
and many were registered to vote in precincts that contained a
majority of white voters and a substantial number of registered
Republicans. The mailing thus bears no relationship to any
alleged concerns expressed by the NCGOP and other involved
parties that the Republicans would not have a sufficient presence
to combat election fraud in certain ?heavily Democratic?
precincts in the state.

The primacy of race in the selection criteria is also
consistent with a desire to discourage participation in the
election. As everyone even remotely involved in politics in
North Carolina is well aware, electoral voting patterns in the
State of North Carolina are marked by severe racial polarization.
Moreover, it is no secret that the overwhelming majority of black
voters in the state are registered Democrats, and were likely to
vote for Mr. Gantt and for other Democratic candidates throughout
the State. Accordingly, if one were interested in decreasing the
turnout among voters most likely to vote_for Mr. Gantt and other
Democratic candidates, one would logically direct such efforts
toward the black voters of the State. Indeed, during his
interview, Carter Wrenn emphasized the critical importance of
turnout in an election and connected ?ballot security? measures
to the issue of turnout, suggesting that such measures are
undertaken when it is believed that those efforts will do an

 

28/ We can only generate a range of figures with the available
information because approximately 9,000 voters moved within a
city that lies within more than one county.

_37_

 

 

effective job of decreasing the number of votes cast for the
opposing candidate. -

In short, we have been offered no legitimate factual
predicate for the race?based selection of ?moved voters? for the
postcard mailing. Indeed, it is difficult to conceive of a
legitimate justification for a mailing setting forth penalties
for voter fraud in which the targeted voters were_selected out of
a larger pool of similarly situated voters based exclusively upon
their race. The exclusivity of race in the selection process is
extremely compelling evidence of an intent to intimidate and
confuse the targeted voters and to deter their participation in
the electoral process.

(2) First-Class Cards

The voters targeted to be sent first-class cards, as you 
will recall, were apparently chosen based upon the aggregate
voter behavior of their precinct-in either the 1984 Senate
contest between Jim Hunt and Senator Helms or the 1988
presidential contest,gg/ the racial composition of their
precinct, the number of voters in their precinct and their party
affiliation. In other words, the decisionmakers targeted
Democrats in precincts in which Helms or Bush fared poorly in
1984 and in which resided a large number of black voters. Not
surprisingly, black voters constituted 93.1 perCent of the
targeted voters for the first?class mailing.

While the presence of race as a primary criteria in this
mailing evinces an intent to frighten voters and discourage 
participation in the election for the reasons suggested above,
other factors (or nonfactors) also reveal an unlawful purpose.

The most telling aspect of this mailing, beside its virtual
racial exclusivity, is the absence of any nexus between the
voters targeted to receive the cards and the alleged concern
which motivated the card mailing?-the Casting of illegal ballots
by Voters who have moved. Indeed, the decisionmakers had no
factual basis for believing that any of the voters targeted for
this mailing had moved: they simply directed the cards to every
household with at least one registered Democrat within the
selected precincts. 'The absence of a discernible link between
the targeting criteria and-the election fraud concern which
allegedly gave rise to the mailing belies the ?neutral?
justification for the mailing and consequently leaves a desire to

 

22/ The abstract used by the designers of the mailing to analyze
the previous election returns contained not only the number of
votes cast for each candidate by precinct, but included the
racial composition and party affiliation of registered voters by
precinct as well.



 

 

intimidate the registered voters in the targeted households and
discourage participation in the election as the only rational
purpose for the mailing.

The fact that the precincts were selected without regard to
the political make?up of the poll officials slated to work in
those precincts further underscores the unlawful purpose of the-
first?class card mailing. The mailing cannot reasonably be
viewed as a legitimate effort to deter fraud in those precincts
with no Republican presence at the polls, as initially suggested
by officials of the NCGOP, where no effort was made to identify
those precincts. Indeed, our research revealed that several of
the targeted precincts were staffed with two Republican poll
officials and the great majority of targeted precincts had at
least one Republican poll official.gg/

Nor can the mailing be viewed solely as an effort to
generate a list of moved voters to use as a basis for challenges
on election day. While the desire to compile moved voter lists
from the returned first?class cards appears to have been One of
the driving forces behind the mailing, such a purpose does not
explain the inclusion of the particular message on the card.;l/
The compilation of a ?moved? Voter list could have been
accomplished by mailing a card which contains a generic message,
which is precisely what was done by Locke and others in 1984.
The decision to include the threatening message on the card
clearly suggests a purpose beyond the compilation of a voter list
for use on election day. 

c. Other Relevant Evidence

Julie Graw, the art deSigner for Discount Paper Brokers who
typeset the postcard, informed us that Several of her supervisors

 

30/ Conversely, we identified a few majority white, majority
Democratic precincts not among the designated precincts in which
the Republicans had no representation among the poll officials.

It is noteworthy that the plan devised to compile a list of
voters subject to challenge on election day was fraught with
inherent problems that would have inevitably led to the challenge
of voters who had taken all of the appropriate steps to register
in accordance with the law. Specifically, the voter registration
list used as a basis for the first?class mailing contained voter
registration information dating back to the early months of 1990.
Thus, it is entirely conceivable that a voter who moved
subsequent to the date the voter registration information was
obtained, and then properly reregistered under his new address,
would have been placed on a challenge list since the postcard to
the his prior residence would likely have been returned.

-39?

 

 

and other leaders within the Helms Committee, including Calvin
Kervin and Robert Rosser, used racial epithets such as ?nigger?
in referring to blacks. Additionally, Graw advised us that she
frequently overheard Kervin and others using what they considered
to be a black dialect when they were discussing blacks in general
or the Gantt campaign in particular. Such testimony provides
relevant background information to proving that the primary
actors in this case intended to intimidate black voters through
the postcard mailing. -

3. Actual Effect

Evidence that the postcard mailing had an intimidating
effect further supports the conclusion that the cards were
intended to have such an effect and independently establishes the
occurrence of an intimidating act, see McLeod, supra. Here,
there is ample evidence that numerous voters eligible to vete in
the November 6, 1990 election who received cards were distressed
and concerned regarding their eligibility. Such distress can be
gleaned from such voters' conversations with-board of elections?
officials.concerning the postcards and their voter eligibility.
Information we obtained from black community leaders and from
targeted voters also reveals that some voters were frightened by
the message of the card and may not have voted had they not
obtained correct information prior to the election. Moreover,
one can reasonably infer that there were others who never
obtained accurate information and thus, although eligible, did
not attempt to vote. -

In assessing the likely impact of the postcard on the
targeted voters, it is critical to consider the history of'
discrimination against black citizens in the State of_North
Carolina and the additional vulnerability of black voters to
these types of tactics because of the vestiges of discrimination.

It must be remembered that official barriers to the ballot
box imposed against black citizens, such as the poll tax and the
literacy test, were eliminated in North Carolina only a
generation ago._ See Thornburg v. Gin les, 478 U.S. 30 (1986).
Accordingly, black voters constitute a much greater proportion of
recently registered voters. .Newly registered voters with less
experience in the electoral process, especially those who have
vivid memories of the_period in which they were barred from
participating in the democratic process, would likely be more
frightened and disturbed by this postcard. Moreover, the
historic discrimination against blacks in education, housing,
employment and social services has been found to relate to the
lower socioeconomic level of black residents of North Carolina,
which in turn has been identified as an impediment to black 
citizens? ability to participate effectively in the political
process. See id. Similarly, this lower socioeconomic status
likely creates more vulnerability among the black population as a

_40?

 

 

whole to being misled and discouraged from voting by this type of
mailing. - 

In short, the vestiges of the long and tortured history of
discrimination against black citizens in North Carolina serve to
buttress the testimony of several black Community leaders--the
postcard mailing likely had an intimidating effect on many of the
black voters selected to receive the 

B. 42 U.S.C. 1973irb)

Section 11(b) of the Voting Rights Act of 1965, 42 U.S.C.
1973i(b), which also prescribes non?violent voter intimidation,
provides:

No person, whether acting under color of laW'or
otherwise, shall intimidate, threaten, coerce, or
attempt to intimidate, threaten or coerce, any person
for voting or attempting to vote, or intimidate, 
threaten, coerce, or attempt to intimidate, threaten or
coerce, any person for urging.or aiding any person to ?2
vote or attempt to vote, or intimidate, threaten or
coerce any person for exercising any powers or duties
under section 6, 8, 9, 10, 12(e).

42 U.S.C. 1973i(b).

 

gg/ In addition to alleging an act to intimidate for purposes of
the right to vote, we should also allege that the activities
constituted an unlawful attempt to intimidate black voters for
purposes of interfering with the right to vote. I recommend such
a claim because it preserves the section 1971(b) claim in the
event that the court finds no actual intimidating effect and also
finds that an act undertaken which does not achieve its desired
objective is properly viewed as an attempt. Although there is
support in the case law for such a view, see United States v.
Clark, 249 F. Supp. 720 (S.D. Ala. 1965) (?[tJhe success or
failure of intimidation, threats or coercion, is immaterial,
since attempts are equally I believe it is an
incorrect view, since an attempt has been defined traditionally
as an inchoate crime, a crime in which not all acts necessary for
its completion have been committed. In a circumstance in which
all of the acts that are necessary to complete the ?crime? have
been accomplished, but the desired effect did not occur, it seems
appropriate to View that as undertaking a completed act. See

Jac illon, 469 F.2d at 382 (?proof of actual fear is not required
in order to establish intimidation?). Nevertheless, we should
allege attempt in case the court finds no intimidating effect and
chooses to follow the approach taken in Clark with respect to the
definition of an ?attempt.?

 

 

l. The legal standard

The legislative history of this provision clearly reveals
that Congress intended to broaden the reach of federal voter
intimidation laws with the passage of Section 11(b). Indeed, in
light of the legislative hiStory, a strong argument can be made
that neither proof of a purpose to intimidate nor actual effect
need be shown in order to establish a violation of Section 11(b).
Rather, the Government need only show that in the particular
circumstances the conduct at issue had a tendency to intimidate,
threaten, or coerce the reasonable voter. Thus, we may be able
to prevail under Section 11(b) in this case irrespective of the
ultimate finding concerning subjective intent.

There are very few reported cases under Section 11(b) (we
have not identified any case brought by the Justice Department),
and of those cases, none engage in any meaningful analysis of the
appropriate standard to adjudicate claims of the statute.;;/

The legislative history of the Act strongly suggests that a
showing of intent to intimidate is not necessary to prove a?

 

13/ The only case that even makes a passing reference to the
standard under Section 11(b) is Olagues v. Russinello, 797 F.2d
1511 (9th Cir. 1986) (en banc), vacated, 108 52 (1987),
which was subsequently vacated on mootness grounds. In
dismissing plaintiff's claim of voter intimidation by various
state officials, the court, citing cases arising under 42 U.S.
1971(b), cursorily asserted that both sectiOn 1971(b) and Section
11(b) require a showing of subjective purpose to intimidate. The
court clearly devoted scant attention to the voter intimidation
claims, as they were not the central claims on appeal.

Not surprisingly, there also exists little case law guidance
for determining whether under Section 11(b) a link between the
misconduct and a federal candidate must be shown to proceed under
the provision and whether the provision only applies to racially
motivated intimidation. The absence of any reference to federal
contests and the legislative history of the statute suggests that
Congress intended that the provision be applicable to all
elections, irrespective of the existence of a federal contest.

At least one court has raised constitutional concerns regarding
Congress' power to reach misconduct in purely local elections.
See United States v._Harvey, 250 F. Supp. 219 (E.D. La. 1966).
We need not resolve this issue in this case, since as noted
above, the requisite nexus to a federal election can clearly be
established; thus, the constitutionality of applying Section
11(b) to this set of facts is beyond dispute. We also need not
resolve whether racial motivation is an element of Section 11(b)
as the instant circumstances demonstrate that such an element
would be satisfied as well. -

_42_

 

 



violation of Section 11(b). Indeed, Section 11(b) was proposed
by the Justice Department specifically to relieve the Government
of the necessity of proving subjective intent to intimidate, a
burden that had been required by the courts in intimidation cases
brought under the Civil Rights Act of 1957, 42 U.S.C. 1971(b).
During hearings before the House Judiciary Committee in March,
1965, Attorney General Katzenbach, explained the reasons for the
inclusion of the anti-intimidation provision of the proposed
bill, which later became Section 11(b) of the Voting-Rights Act
of 1965:

The litigated cases [under 42 U.S.C.
1971(b)] amply demonstrate the inadequacies of
current statutes prohibiting voter intimidation.
. . .[T)he most serious inadequacy results from
the practice of district courts to require the
Government to carry a very onerous burden of
?purpose.? Since many types of intimidation,
particularly economic intimidation, involve -
subtle forms of pressure, this treatment of the
purpose requirement has rendered the statute
largely ineffective. 

In our view, section 7 of the bill [later

section 11] which prohibits intimidation
of persons voting or attempting to vote under the
bill represents a substantial improvement over 42
U.S.C. 1971(b). . .[ander the language of
section 7, no subjective ?purpose? need be shown

. (in order to prove intimidation under the
proposed bill. Rather defendants would be deemed
to intend the natural consequences of their
acts.?g/

Voting Rights 1965, Hearings on H.R. 6400 Before Subcomm. No. 5
of the Committee on the Judiciary House of Representatives, 89th
Cong., 1st Sess. 11 (1965) (statement of Nicholas Katzenbach,
Attorney General of the United States). 

The House Report on the Voting Rights Act of 1965 reflected
Attorney General Katzenbach?s characterization of Section 11(b).

 

33/ Under 42 U.S.C. 1971(b), it is unlawful to ?intimidate,
threaten, coerce, or attempt to intimidate, threaten or coerce
any other person for the purpose of interfering with the right.to
vote.? (emphasis added). Section 11(b) does not include the
underlined language, presumably to effectuate the primary basis
for enacting the provision, the elimination of subjective intent
as an element in voter intimidation cases.

_43_

 

 

 

 

with respect to Section 11(b), The Report states that ?unlike 42
U.S.C. 1971(b) (which requires proof of a ?purpose? to interfere
with the right to vote) no subjective purpose or intent need be
shown.? H.R. Rep. No. 439, 89th Cong., 1st. Bass. 32 (1965).

In light of the clear legislative history, it appears that
some type of objective standard would best effectuate the
Congress? desire to broaden the protective umbrella of federal
anti?intimidation laws.

Principles of labor law prove instructive in formulating a
standard that accomplishes Congress? apparent designs in enacting
Section 11(b). The concept of an objective test to determine
unlawful interference with a protected right has been well
established in the context of unfair labor practice adjudication
under the National Labor Relations Act. Under the Act, it is an
unfair labor practice for an employer or union to ?interfere
with, restrain or coerce employees in the exercise? of their
rights guaranteed in the Act, which are essentially to organize,
join unions, bargain collectively and strike. See Soule Glass -
and Glazinq Co. v. NLRB, 652 F.2d 1055, 1076-77 (lst Cir. 1981)"
(quoting.29 U.S.C. 158(a)). The First Circuit in Soule Glass
clearly set forth the prevailing standard for adjudicating unfair
labor practice claims:

The elements of [an unfair labor
practice] violation are to be determined
by reference to an objective text. It is
not necessary to show that particular
employees felt coerced, etc., or that the
employer intended to produce the
impermissible effect. . . . Rather, it is
sufficient if the General Counsel can
show that the employer?s actions would
tend to coerce a reasonable employee.

id. at 1077. See also Black Grievance Committee v. NLRB, 749
F.2d 1072, 1075 (3d Cir. 1984), Cert. denied, 472 U.S. 1008
(1985) (?Neither direct proof of interference with protected
rights nor anti?union animus is necessary to sustain a violation
of section 8(a)1, so long as the emplOyer?s activity would tend
to interfere with, coerce, or restrain a reasonable employee.):
Russell Stover Candies, Inc. v. NLRB, 551 F.2d 204, 207-08 (8th
Cir. 1977) (illegality of employer?s conduct under section
not contingent upon evidence that employees were in fact
coerced); Fun striders, Inc., v. NLRB, 686 F.2d 659, 662 (9th
Cir. 1981) (antiunion motive not essential element of violation
of section Huck Manufacturing Co., v. NLRB, 693 F.2d
1176, 1183 (5th Cir. 1982) (NLRB need only draw.a reasonable
conclusion form the evidence that company?s conduct would tend to
coerce employees in exercise of protected activities).



 

 

 

 

Consistent with this approach, several courts have held that ?an
employer?s belief, whether reasonable or unreasonable, is not the
determinative factor in deciding whether there has been an
interference with employees' rights . . . Hughes Properties,
Inc., v. NLRB, 758 F.2d 1320, 1323?24 (9th Cir. 1985) (employer?s
good-faith impression that targets of union organizational effort
may have been on-duty employees carried no weight in
determination whether unfair labor practice committed); see also
NLRB v. Litho Press, 512 F.2d 73, 76 (5th Cir. 1975) (fact that
employer may not have known that person he evicted from property
for passing out union handbills was in fact employee not relevant
to determination whether conduct violated section 

Thus, a good-faith mistaken belief concerning a relevant aspect
of the alleged misconduct does not serve as a defense to an
unfair labor practice claim.

Mindful of the fact, however, that many legitimate employer
decisions, such as closing operations, may well tend to interfere
with employees? protected activities, the Supreme Court has noted
that in the absence of an anti-union motive, section 8(a)1 is
violated only when the interference with the protected rights
outweighs the business_justification for the employer?s actions.
Textile Workers Union v. Darlington Manufacturing Co., 380 U.S.
263, 269 (1965); see also Sou1e Glass, supra, at 1077
(?[eJmployer conduct that otherwise tends to interfere, restrain,
or coerce employees may be held lawful if it advances a
substantial and legitimate company interest . . 

In determining whether a particular action or set of actions
violates section the factfinder is ?to consider the
total context in which the challenged conduct occurs and is
justified in viewing the issue from the standpoint of its impact
on the employees.? NLRB v. Okun Bros. Shoe Store. Inc., 825 F.2d
102, 105 (6th Cir. 1987), cert. denied, 485 U.S. 935 (1988); see
also NLRB v. Nueva Engineering Inc., 761 F.2d 961, 965 (4th-Cir.
1985) (employer?s alleged misconduct must be assessed within 
totality of circumstances surrounding each occurrence at issue).

The basis for applying an objective standard that requires
neither a showing of illegal purpose or actual effect is quite
straightforward and simple: This section of the Act is, inter
alia, ?intended to protect employee self?organization from
disruptive interference by employers.? Russell Stover, supra at
208. Since an employer?s conduct can be disruptive of its
employees? free exercise of their organizational rights even
though the employees are not in fact coerced, an objective
standard which examines the reasonable tendency of a particular
act from the vantage point of the employee best effectuates the
purpose of the Act's prohibition.

It appears that the standard developed to evaluate section
claims is well suited for adjudication of claims of



 

 

 

 

intimidation, threats or coercion under section 11(b) of the
Voting Rights Act. First, in their respective contexts, both
statutes have an identical purpose: to protect a particular group
of individuals (employees and voters respectively), from undue
interference in the exercise of their constitutional and
statutory rights (the right to organize and bargain collectively
guaranteed by the National Labor Relations Act and the
constitutionally guaranteed right to vote).. As noted above, it
is this broad protective purpose that forms the basis for the
court?s adoption of an objective test to evaluate section 
claims. This is especially relevant to Section 11(b), since the
legislative history of the section strongly suggests that
Congress believed that a ?purpose? standard was not effectively
protecting voters from interference with their voting rights. In
addition, the similarity of the operative terms of the two
statutes counsels in favor of adopting the well-established
framework for unfair labor practice claims to evaluate claims of
voter intimidation under Section 11(b).

In addition, the objective standard is capable of .
application without infringement of protected First Amendment
rights. In NLRB v. Gissel Packing, 395 U.S. 575 (1969), the
Supreme Court_upheld the NLRB's finding based upon an objective
standard that the employers had unlawfully threatened their 
employees under the Act and rejected the employer?s claim that
the speech which constituted the unfair labor practice was
protected by the First Amendment. While initially noting that
?an employer?s free speech right to communicate his views to his
employees is firmly established and cannot be infringed by a
Union or the the.Court went on to recognize that an
?employer?s rights cannot outweigh the equal rights of employees_
to associate freely, as those rights are embodied? in the
National Labor Relations Act. id. at 617. Accordingly, the
Court held that an employer's communications which contain a
?threat of reprisal or force or promise of benefit?.are not
protected by the First Amendment and may be validly proscribed.
Id. at 618.

The compatibility of an objective standard with First
Amendment protections is underscored by the courts' construction
of 18 U.S.C. 871, the statute which prohibits threats upon the
President. In Watts v. United States, 394 U.S. 705 (1969), the
Supreme Court cautioned that because a statute like 18 U.S.C. 871
?makes criminal a form of pure speech, [it] must be interpreted
with the commands of the First Amendment clearly in mind. What
is a threat must be distinguished from what is constitutionally
protected speech.? id. at 707. _Accordingly, the Court concluded
that ?the statute requires the government to prove a ?true?
threat,? as mere ?political hyperbole,? is constitutionally
protected. lg. 



 

 

1
r?

In formulating a standard faithful to Watts and the broad
protective purpose of the statute?-to protect the President from
any statement that would disrupt his activities and movement~-
the appellate courts have, almost without exception, held that to
?establish a ?true threat? and thus a violation of the statute,
the government need demonstrate only that ?the defendant made the
statement under such circumstances that a reasonable person would
construe them as a serious expression of an intent to inflict
bodily harm upon or to take the life of the persons named in the
statute.? United States v. Qallahan, 702 F.2d 964, 965 (11th
Cir.), cert. denied, 464 U.S. 840 (1983); see also United States
V. sart, 705 F.2d 1247, 1256?57 (10th Cir.), cert deniEd, 464
U.S. 934 (1983): United States v. Ro ers, 488 F.2d 512 (5th Cir.
1974), rev?d on other grounds, 422 U.S. 35 (1975); United States
v. Lincoln, 462 F.2d 1368 (6th Cir.), cert. denied, 409 U.S. 952
(1972); Bgy v. United States, 416 F.2d 874, 877-78 (9th Cir.
1969);but see Rogers v. United States, 422 U.S. 35, 47~48 (1975)
(Marshall, J. concurring) (standard permitting conviction based
upon reasonable understanding of speaker?s statement under
section 871(a) should be abandoned and replaced with test which
requires proof that speaker ?intended his statement to be taken
as a threat. . This objective test has also been adopted as
the appropriate.standard for prosecutions under 18 U.S.C. 876,
which prohibits using the mails to send threatening
communications. See United States_v. Khorrami, 895 F.2d 1186,
1192?93 (7th cir.), cert. denied, 111 522 (1990); Martin v.
United States, 691 F.2d 1235, 1240 (8th Cir. 1982), cert. denied,
459 U.S. 1211 (1983). .

The reasonableness inquiry in the context of Section 11(b)
is similarly appropriate as a vehicle to distinguish between
those words and conduct which are ?truly? intimidating,
threatening and coercive under the totality of circumstances
that which would tend to intimidate, threaten or coerce the
?reasonable? voter in the particular circumstances) and such
words or conduct which are ?political hyperbole? or are otherwise

2. The Reasonableness Inquiry

The postcard mailing at issue clearly had a tendency to
intimidate the Vreasonable? voter concerning their exercise of
the franchise on November 6, 1990. Such a conclusion is
supported by the evidence of actual fear and confusion of the
targeted voters, in the form of the personal testimony of the
targeted voters as well as the testimony of those election
officials and black community leaders who were contacted by
concerned targeted voters. Moreover, the comments of black
community leaders and others concerning the likely impact of the
postcard on elderly black voters who have subject to invidious
discrimination at the polls in the past, and the likely impact on
younger black voters inexperienced with the voting process, also

 

militates in favor of a finding that the postcards had a tendency
to intimidate the ?reasonable voter.? Indeed, since the
reasonableness inquiry should be made in light of the context of
the misconduct and from the vieWpoint of the individual(s) at
whom the misconduct is directed, see Okun Bros. Shoe Store, supra
at 105, the history of-discrimination and the continuing vestiges
of such discrimination alluded to by black community leaders are
critically important to determining whether a violation of
Section 11(b) has occurred. See Section supra.

It should also be emphasized that the fact that some voters
may not have been intimidated by the postcard does not negate a
finding that the postcard had a tendency to intimidate. Indeed,
in Okun Bros. Shoe Store, supra, the court held that the unfair
labor practice finding by the NLRB would.have been upheld even in
the absence of any evidence demonstrating that the employees were
intimidated. Id. at 107. Accordingly, those responsible for the
postcard mailing clearly violated Section 11(b) of the Voting
Rights Act. Additionally, the postcard mailing cannot be
defended in this case on the ground that the mailing ?advanced a
substantial and legitimate interest,? and thus is lawful under 
the_balancing test articulated in Darlington Manufacturing,
supra. A mailing which contains false and misleading information
directed virtually exclusively at black voters cannot reasonably
be characterized as an act which furthers a legitimate and
substantial interest of the prospective defendant organizations.

C. Proposed Defendants

The investigation demonstrates that Ed Locke and Doug
Davidson are proper individual defendants in our proposed
lawsuit. With respect to Locke, all of the available evidence
indicates that he was the individual primarily responsible for
the mailing and all of the decisions made in connection with the
mailing evince a desire to intimidate black voters and discourage
them from exercising the franchise. The information that we have
obtained concerning Doug Davidson, the other individual whom we
are aware of who played a significant role in some of the
critical decisions concerning the postcard mailing the
targeting of black voters), reveals that he contributed to the
mailing with the understanding that the card was designed to
intimidate black voters and thus decrease their turnout for the
November 6 election.

The NCGOP, the Helms Committee, and the Jefferson Marketing
Companies (which includes Jefferson Marketing, Inc., Discount
Paper Brokers, Inc., Campaign Management, Inc. and Computer
Operations and Mailing Professionals, Inc.) are proper
organizational defendants in our proposed lawsuit. The NCGOP and
the Helms Committee are liable by virtue of the fact that they
retained Locke to coordinate a ?ballot security? program, which
as the principals knew at the time he was retained, was to

 

 

include a postcard mailing to selected voters. Locke thus served
as an agent to these two organizations in coordinating the
postcard mailing and all other facets of the ?ballot security?
program. Moreover, the evidence demonstrates that all of the
decisions made by Locke concerning the ?ballot_security? program
were within the broad scOpe of authority granted to him by these
organizations to serve as their agent for the ?ballot security?
program. 

Under common law principles of agency, ?[ajn agent is one
who is authorized by another (principal) to act on his behalf.
An agent?principal relationship is characterized by the presence
of two elements. First, there must be an indication by the
principal that the agent will act on his behalf and subject to
his control. And second, there must be a manifestation of
consent by the agent so to act.? Johnson v. Bechtel Associates
Professional Corp., 717 F.2d 574, 579 (D.C. Cir. 1983), rev?d on
other grounds, 104 1327 (1984); Restatement (Second) of
Agency 1 (1958). The courts have stressed, however, that the
,critical element in determining whether an agency relationship
exists is whether-?the agent's acts are subject to the
principal?s direction and control.? In Re Shulman Transport
Enterprises, Inc., 744 F.2d 293, 295 (2d Cir. 1984); NLRB v.
United Brotherhood of Carpenters, 531 F.2d 424, 426 (9th Cir.
1976), When such criteria are met, those acts of the agent
within the confines of the agency relationship are those of the
principal. British Amercian Eastern Co.. Inc. v. Wirth Ltd.,
592 F.2d 75 (2d Cir. 1979).

Applying these definitional guideposts to the information we
have obtained, the relationship between Locke and the NCGOP and
the Helms Committee can appropriately be characterized as an 
agency relationship.

with respect to the NCGOP, NCGOP funds financed the ?ballot
security? program, including Locke?s services. Moreover, NCGOP
representatives played a role in deciding to undertake a ?ballot
security? project and in reviewing Locke?s preliminary course of
action on ?ballot Security,? which included a postcard mailing to
?moved voters? which would address the law concerning voter
residency requirements. Hawke apparently chose to defer to
Locke?s judgment on the some of the specifics of the program;
Locke was certainly subject to Hawke?s and other NCGOP
representativeS? direction, however, when he decided to exercise
such 

 

gg/ Such control is evidenced by the fact that Ed Locke
terminated his plan to compile lists of voters for challenge on
election day after being instructed to do so by Hawke and/or Tom
Farr, who was representing the NCGOP and Jack Hawke at the time.

 

 

 

With respect to the Helms Committee, representatives of the
Committee played a primary role in deciding to undertake a
?ballot security? project, in retaining Locke to conduct the
project, and in approving a tentative outline for the ?ballot
security? program, which included a postcard mailing to ?moved
voters.? Moreover, the Helms Committee devoted significant
financial and personnel resources??office space within Helms
Committee state headquarters and the assistance ofrAmy Starling,
a paid employee of the Helms Committee-?to support Locke?s
activities in implementing a ?ballot security? program.-
Davidson?s comment at his interview concerning the Helms
Committee?s relationship to Locke reveals that the leadership of
the Committee viewed Locke as someone acting at their behest and
under their control. .

Indeed, Locke was certainly subject to the direction and
control of the Helms Committee. Doug Davidson, who was working
for the Helms Committee during the final months of the campaign
and consulted with the Committee leadership on a daily basis, was
a conduit through which the Helms Committee could, and perhaps
did, assert control over Locke?s.activities. Paradoxically,
although Locke was paid by the NCGOP, the campaign conteXt in 
which he werked suggests that the Helms Committee likely exerted
more control over his activities. - 

In sum, the ?ballot security? program was clearly a joint
undertaking by the NCGOP and the Helms Committee, and although
Locke was paid and the entire program was financed from NCGOP
funds, both organizations played integral roles in retaining
Locke, and shaping his activities. Moreover, representatives of
both organizations were in positions to direct and control his
?ballot security?-activities. Accordingly, all of Ed Locke?s
actions with respect to ?ballot security? are those of his
principals, the NCGOP and the Helms Committee.

The NCGOP and the Helms Committee may also be liable through
the acts of Davidson since he also apparently served as an agent
to one or both of the respective organizations for purpOses of
the ?ballot security? program. Although Davidson claims that he
was working for the NCGOP in coordinating the ?ballot security?
program, the evidence strongly suggests that_Davidson was in fact
working for the Helms Committee in connection with his work on
?ballot security.? Most telling in this regard is the fact that
Davidson recalled seVeral conversations with Helms Committee
representatives concerning the_?ballot security? program but
specifically disavowed any contact with NCGOP representatives
concerning ?ballot security? or any matter aside from the meeting
held with NCGOP representatives and Locke and October 22.
Moreover, Davidson was working on the Helms Committee as an
events coordinator during the_time the ?ballot security? program
was being implemented. Davidson may have been wearing both hats
in connection with his work on ?ballot security,? but if there is



 

 

room only for one hat, the facts reveal that Davidson was wearing
the Helms Committee hat when implementing the ?ballot security?
program.

The fact that an agent engages in unlawful conduct not
specifically authorized does not insulate the principal(s) from
responsibility. Indeed, it is well established in the fair
housing context that a principal is liable for the racially
discriminatory conduct of its agent when the agent is acting
within the scope of the agency relationship, regardless of
whether the principal specifically authorized such conduct. See
Hamilton v1 Svatik, 779 F.2d 383, 388 (7th cir. 1985);
Phiffer v. Proud Parrot Motor Hotel, Inc., 648 F.2d 548, 552 (9th
Cir. 1980); Moore v. Townsend, 525 F.2d 482, 485 (7th Cir. 1975);
Izard v. Arndt, 483 F. Supp. 261, 263 (E. D. Wis. 1980).

Similarly, under Title VII, an employer has generally been held
liable for the discriminatory acts of its agents' delegated
authority to make employment and supervisory decisions. See Horn
v. Duke Homes. Inc., 755 F. 2d 599 (7th Cir. 1985); Henson v. City
of Dundee, 682 F.2d 897 (11th 

 

Moreover, in addition to the above theories of liability,
we can also argue that irrespeCtive of the scope of authority .
within which Locke and Davidson conducted their ?ballot security?
activities, the NCGOP and the Helms Committee are liable for the
acts of Locke and Davidson by virtue of their ratification of
those acts.

According to the Restatement on Agency, ratification is
defined as ?[tJhe affirmance of a prior act which did not bind
[the principal] but which was dene or prof.essedly was done on his
account whereby the act, as to some or all persons is given
effect as if originally authorized by law.? Restatement (Second)
of Agency 82 (1958). The treatise on agency defines .
?affirmance? as ?a manifestation of an election by one on whose
account an unauthorized act has been done to treat the act as
authorized[. 1? Id. at 83. principal can ratify an
unauthorized act of an agent purportedly done on behalf of the
principal either expressly or by implication through conduct that
is inconsistent with an intention to repudiate the unauthorized
act. McDonald v. Hamilton Electric, Inc. of Florida, 666 F. 2d
509, 514 (11th Cir. 1982); see also Shearson Hayden Stone, Inc.
v. Leach, 583 F.2d 367, 369 (7th Cir. 1978).

Generally, if at the time of an act of affirmance, the
purported principal is ignorant of material facts involved in the
original transaction, and is unaware of his ignorance, then the
affirming act generally does not bind the principal. Id. at
91. However, it is well established that if the ?purported
principal is said to have knowledge of facts [concerning the
purported agent?s conduct] which would lead a person of ordinary
prudence to investigate further, and he fails to make such an

 

 

 

z}
1

investigation, his affirmance without qualification is evidence
that he is willing to ratify upon the knowledge that he has,? and
thus the principal may be liable for the conduct in question.

id. at 91 (comment Computel, Inc. v. Emery Air Freight.

Cor ., 919 F.2d 678, 682-85 (11th Cir. 1990); Renault V. L.N.
Renault Sons, 188 F.2d 317, 321 (3d Cir. 1951); Lewis v. Cable,
Supp. 196, 198 (W.D. Pa. 1952) 

With respect to the NCGOP, Hawke?s public claim of
responsibility for the postcard as part of the ?ballot
security? program and his defense of the propriety of the
postcard in response to press inquiries, all prior to the
initiation of our investigation, and likely subsequent to
learning of the precise details of the mailing {Hawke spoke to
Locke personally on October 30 or October 31), clearly
constitutes an act of affirmance of the postcard mailing.

Moreover, there are other acts of ?affirmance? that bind the
Helms Committee and/or the NCGOP. First, Locke was fully paid
for his services and reimbursed for his expenses on November 15,f
more than two weeks after the postcard mailing. Thus, Locke was
paid in full after the principals of the organizations knew that
the card contained false and misleading information and probably
after they discovered the virtual racial exclusivity of the
mailing. Such conduct certainly qualifies as an act of
?affirmance? under the common law principles of agency.

The attempt to remail first-class postcards to residents of
Mecklenburg County can also fairly be viewed as an act of
affirmance by those who made the decision to undertake the
remailing effort (likely principals of the Helms Committee and/or_
the Jefferson Marketing Companies). The_remailing effort was 
undertaken contemporaneous with press reports that the cards
contained false information and that they were targeted primarily
to black voters throughout the state.

Any claim that some or all of the principals were unaware of
the precise selection criteria used in the postcard mailing at 
the time the NCGOP publicly took responsibility for and defended
the mailing, at the time of the remailing effort, and at the time
Locke was paid for his services is unavailing in this context on'
two different grounds. First, at the time Mr. Hawke stated that
the postcard mailing was a legitimate component of the party?s
?ballot security? program, Hawke also told the press that the
mailing was aimed at registered voters in overwhelmingly
Democratic precincts, and that black voters constituted the great
majority of voters in such precincts. Thus, at the time he took
responsibility for the postcard mailing, Hawke understood that
many, if not moSt of the Cards were aimed at black voters in the
state and consequently was aware of the essential or ?material?
facts involved in the postcard mailing. Accordingly, any
ignorance of the specific details_at the time of this public



 

 

3.

embrace of the mailing does not insulate Hawke? words as serving
as evidence of ratification.

Second, from the moment receipt of the postcards was
reported to the press, the principals of the prospective
defendant organizations had sufficient information that would
lead a reasonable person to investigate further concerning the
criteria employed for the postcard mailing. Thus,leven if some
or all of the principals did not know the precise details at
these critical junctures-~which is unlikely?~their actions
demonstrate that they were willing to accept responsibility for
the postcard mailing with less than complete information and thus
ratification may be inferred from their various acts of
affirmance during the three week period subsequent to the actual
mailing of the postcards. See id. at 91 (comment 

Finally, all three Jefferson Marketing Companies may be held
liable by virtue of. Davidson and Kervin? 5 activities. Davidson,
an employee of Campaign Management, Inc. (and formerly the
President of Jefferson Marketing, Inc.) appears to have exercised
managerial and supervisorial control over employees of all three
companies and_to have devoted significant resources from all
three companies toward the postcard mailing effort. Kervin 
role in the remailing effort can also be relied upon in assigning
liability, at least with respect to Discount Paper Brokers, Inc.
In addition, evidence obtained thus far_suggests that other
employees within the Jefferson Marketing Companies may have
played a material role in the drafting process. Jefferson
Marketing, Inc. should also be named as a defendant since the
three corporations are wholly?owned subsidiaries of Jefferson
Marketing, Inc. Accordingly, Jefferson Marketing may be an
indispensable defendant to obtain full relief against all of the
Jefferson Marketing Companies.

IV. Relief

I recommend that we seek declaratory and injunctive relief
against all named defendant individuals and organizations.
Specifically, we should ask the court to declare that the
postcard mailing violated 42 U.S.C. 1971(b) and 42 U.S.C.
1973i(b).

I also recommend that we ask the oeurt to enjoin all
defendants from undertaking any activities designed to
intimidate, threaten or coerce voters concerning their exercise
of the franchise. To ensure compliance, we should request that
the court retain jurisdiction and require that any defendants
submit to the court for review prior to implementation any
?ballot security? mailing or other proposed activity, or at least
any such program in which the targeting criteria is, either
wholly or in part, based on racial or ethnic criteria. Under



 

 

such a procedure we would also be provided with the ?submission?
and would have a specified period of time to file any objections
with the court. This type of remedy would be an effective method
to prevent disruptive activity to minority voting rights before
the conduct occurs and the harm is done.

Counsel for both the NCGOP and the Helms Committee have
indicated a willingness to engage in settlement discussions to
dispose of the case. While we have not delved into any detail on
the issue, counsel for the NCGOP did .express his willingness to
consider a type of ?preclearance? mechanism as outlined above as
part of a final settlement.

V. CONCLUSION

 

For the foregoing reasons, I recommend that you authorize
the filing of a complaint alleging that the named defendants
intimidated and threatened or attempted to intimidate and
threaten black voters concerning their right to vote, in
violation of 42 U.S.C. 1971(b) and 42 U.S.C. 1973i(b).

APPROVED

 

DISAPPROVED

COMMENTS:

?54_