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October 17, 2019

Ronna Romney McDaniel

Chair of the Republican National Committee Republican National Committee (RNC)

310 First Street, SE Washington, DC 20003

Re: Deceptive Census Mailers Commissioned by the Republican Party Mailed to Residents of Montana

Dear Ms. McDaniel:

The Lawyers’ Committee for Civil Rights Under Law (“Lawyers’ Committee) and The Native American Rights Fund (“NARF”) write to express grave concerns regarding the mailing of 2019 Congressional District Census Mailer to addresses in Montana, a mailer which directs its recipients to fill out an “official” “Census” survey. Not only does this mailer violate the Prevent Deceptive Census Look Alike Mailings Act, 39 U.S.C. § 3001(h), (i), (l), but it also threatens to sow confusion and, indeed, defraud its recipients. Further, the negative effects of this mailer are likely to be felt disproportionately by those for whom English is not their primary language, predominately Native Americans and people of color. Finally, the mailer improperly politicizes the decennial Census and can only disrupt ongoing efforts to get out the count.

The envelope in which the mailer is enclosed as well as the letter itself prominently and repeatedly showcase phrases such as “2019 Congressional District Census,” “Your Participation is Urgently Needed,” “Do Not Destroy Official Document,” “2019 Census Project,” and “return your Census Document.”1 The letter indicates that it is being sent at the direction of the president. This language

1 See Freddy Monares, State Warns Montanans About Republican “Look-a-Like” Census Mailers, Bozeman Daily Chronicle (Sept. 27, 2019), https://www.bozemandailychronicle.com/news/politics/state-warns-montanans- about-republican-look-a-like-census-mailers/article_b697db15-1485-5206-8efe- 5ba28e7c7074.html?utm_source=dlvr.it&utm_medium=facebook&fbclid=IwAR3gCVHOo7C2FixT8MkrS1

_5C_hKljpBHcW9E9uGWxKFqorLPT46ZzwyBp0; Letter from the Republican Nat’l Comm. Re 2019 Congressional District Census Mailers, https://bloximages.chicago2.vip.townnews.com/bozemandailychronicle.com/content/tncms/assets/v3/edit orial/8/32/832d7bf1-304f-5a2a-879f-b60a720cfea2/5d8e9ec7c2dfe.pdf.pdf (last visited Oct. 4, 2019); Survey

clearly conveys the message that the letter is an official communication of the federal government relating to the upcoming Census, and that recipients are required to fill it out.

Moreover, the mailer includes a questionnaire. It provides a due date of October 15, 2019 and directs recipients to “return the Census Document.” The enclosed multiple choice questionnaire resembles official Census forms. Given the similarities in form and structure between the letter and the official Census and the repeated use of the word “Census,” these mailers have the potential to mislead Montanans into thinking they are filling out the official 2020 Census questionnaire.

Based upon news media reports in the Washington Post, we understand that an RNC spokesperson confirmed that the RNC sent these mailers to Montanans—the “[m]ailers are clearly marked that they are from the Republican National Committee. The mailers receive an overwhelming positive response and we continue to send each year because it performs so well.”2 We ask that the RNC confirm that they are responsible for sending these mailers to Montanans, that the RNC immediately cease sending these mailers to any resident of the United States, and that the RNC specify the steps it has taken to prevent such practices.

I.  The Census Mailers Violate the Provisions of the Prevent Deceptive Census Look Alike Mailings Act Because the Envelope Bears the Term “Census” and Does Not Include the Required Disclosure and Does Not Bear a Return Address.

In response to similar mailings sent by political parties in 2010, Congress enacted the Prevent Deceptive Census Look Alike Mailings Act (“Act”), 39 U.S.C. § 3001, et seq., which declares that a matter bearing the term “census” on its envelope, outside cover, or wrapper, but that constitutes a solicitation by a nongovernmental entity, to be nonmailable by the United States Postal Service, unless: (1) it satisfies one of the exceptions specified for otherwise nonmailable matter under existing law (such as displaying an appropriate disclaimer); and (2) its envelope, outside cover, or wrapper bears on its face an accurate return address including the name of the entity that sent it. 13

U.S.C. § 3001(h)–(i).

The envelope of the RNC’s mailer has the word “Census” prominently displayed in the upper right hand corner and it solicits a contribution from the recipients. Some mailers even have phrases such as “Do Not Destroy” and “Official Document.” The mailers do not, however, contain a disclaimer or notice as required by the statute—“THIS PRODUCT OR SERVICE HAS NOT BEEN APPROVED OR ENDORSED BY THE FEDERAL GOVERNMENT, AND THIS OFFER IS NOT BEING MADE BY AN AGENCY OF THE FEDERAL GOVERNMENT,” or “THIS IS

NOT A GOVERNMENT DOCUMENT.” Id. at § 3001(h)(1)(B). Nor does the mailer include the RNC’s return address. Therefore, it runs afoul of the Act.

Under the Act, an individual may submit a written request either to the mailer (i.e., RNC) or to the state’s attorney general to send to the mailer asking the mailer to cease sending such materials. Such

from the Republican Nat’l Comm. Re Census Survey and Solicitation of Contributions, https://bloximages.chicago2.vip.townnews.com/bozemandailychronicle.com/content/tncms/assets/v3/edit orial/c/2f/c2fb9bb6-4910-5516-99e6-2d8b430ac7da/5d8e9ec7993b5.pdf.pdf (last visited Oct. 4, 2019).

2 Kim Bellware & Brittany Shammas, RNC Solicited Money for Trump’s Reelection with Forms that Look a Lot Like the Official Census, Wash. Post, Oct. 1, 2019, https://www.washingtonpost.com/politics/2019/09/30/rnc- solicited-money-trumps-reelection-with-forms-that-look-lot-like-official-census/.

a written request triggers the mailer to adopt “reasonable practices and procedures to prevent the mailing of such matter.” Id. at § 3001(l). Violation of this provision could lead the mailer to incur a civil penalty not to exceed $10,000 for each subsequent mailing to the individual who requested not to receive such communications. 39 U.S.C. § 3012(d).

In addition, the postal service may issue an order to such mailers engaged in sending materials that include the word “Census” on the envelope without the requisite disclaimers to cease and desist. 39

U.S.C. § 3005(a).3 Failure to comply with the order may result in civil penalties to the mailer in an amount not to exceed $50,000 for each mailing of less than 50,000 pieces; $100,000 for each mailing of 50,000 to 100,000 pieces; with an additional $10,000 for each additional 10,000 pieces above 100,000, not to exceed $2,000,000. 39 U.S.C. § 3012(a).

We have copied the Postmaster General with this letter, asking her to investigate this, and take appropriate action.

II. The RNC’s Census Document Mailers Have the Potential to Confuse, Mislead, and Defraud Recipients with Disproportionate Impacts on Traditionally Disenfranchised Groups

Even were the mailers not prohibited by statute, their mailings constitute fraudulent and deceptive practices that are injurious to the public. The Census Act requires individuals to fill out Census survey questionnaires completely, or be subject to penalty. 13 U.S.C. § 221. This creates a fear among individuals and communities that they must respond to the official Census, and it is likely that many will view the mailing as just that – because it says it is.

Even worse, the mailings have the potential to mislead and confuse vulnerable populations, i.e., those who may have difficulty understanding English or who hail from traditionally disenfranchised, minority populations such as the Native American population in Montana, which comprises close to 6.3% of the state’s total population as of 2010.

Furthermore, the letter solicits a contribution. In the context of the “official” language, the RNC’s solicitation of contributions has the potential to defraud recipients into believing that payment is required for the completion of the official 2020 Census.

Officials in Montana have already declared the RNC’s mailers deceptive and warned their citizens about responding to the “imitation census survey.”4 In its September 27, 2019 press release the Montana Census and Economic Information Center at the Montana Department of Commerce warned Montanans to be aware of the RNC’s mailers: “official U.S. Census Bureau surveys will never ask respondents for money, and those surveys will always be postmarked from the

U.S. Department of Commerce, U.S. Census Bureau.” 5 The Montana Commerce Department

3 On May 9, 2019 and during the past decennial Census cycle, members of Congress asked the Postmaster General requesting investigation of RNC mailers that were sent out to residents of California in May.

Bethania Palma, Did GOP Send Out a ‘Fake Census’ Asking for Campaign Donations?, Snopes (May 28, 2019), https://www.snopes.com/news/2019/05/28/gop-send-out-a-fake-census/.

4 Bellware & Shammas, supra note 2.

5 Montana Census and Economic Information Center, New Imitation Census Survey Reaches Montana Residents (Sept. 27, 2019),  https://commerce.mt.gov/News/PressReleases/new-imitation-census-survey-reaches- montana-residents

has received calls from Montanans, complaining of confusion as to the RNC mailers. Emilie Ritter Saunders, a spokeswoman for the Montana Department of Commerce, said “We want to immediately squash any confusion. Our job is to make sure Montanans have accurate info about the census.”6

III. The RNC’s Census Document Mailers Frustrate Ongoing Educational and Civic Engagement Efforts of Local Governments and Non-Partisan Groups to Increase Response Rates Among Minority Groups to the Official 2020 Census.

The mailers frustrate the increased educational and civic engagement efforts by non-partisan organizations like the Lawyers’ Committee and NARF and scores of other groups around the country, together with state and local officials to increase response rates to the 2020 Census in traditionally disenfranchised communities. A recent Census Bureau study conducted among eleven audiences– 11 audiences: American Indian and Alaska Native, Black or African American, Chinese

– Cantonese and Mandarin, Low Internet Proficiency, Middle Eastern and Northern African, Native Hawaiian and Pacific Islander (NHPI), Rural, Spanish (Puerto Rico), Spanish (U.S. Mainland), Vietnamese, and Young and Mobile—found that these individuals have a lower level of intent to respond to the Census questionnaire.7 Some of the barriers or lack of motivation to respond arise from fear of repercussions that their answers will be used against them, distrust in all levels of government, unfamiliarity with the Census, and misconceptions about the process.8

The RNC mailer exacerbates these problems. Now, organizations and officials must give the conflicting message to the already wary that they should be on the look-out for mailings masquerading as Census questionnaires while, at the same time, encouraging them to fill out the official Census questionnaire.

The Census should not be a pawn in partisanship. As Montana’s Lieutenant Governor put it, “Montanans need accurate information about the Census to make sure we have a complete count of the folks who live here. A complete count means the state will get its fair share of federal funding,” adding that “the official Census is easy to complete, secure, and does not cost money. An accurate and complete Census count for Montana is too important to take lightly.”9

IV.          Conclusion

You must stop this practice now. We ask that you acknowledge that the RNC sent these mailers to Montanans, and demand that you immediately cease sending such mailers to the residents of Montana and any other jurisdictions, and specify the steps you are taking to prevent such practices. Should you have any questions, please contact [email protected] and [email protected]

6 Bellware & Shammas, supra note 2.

7 Census Bureau, 2020 Census Barriers, Attitudes, and Motivators Study Survey Report (Jan. 24, 2019), at *2 fn. 3, https://www2.census.gov/programs-surveys/decennial/2020/program-management/final-analysis- reports/2020-report-cbams-study-survey.pdf.

8 Id. at 2.

9 See id.

Sincerely,

Kristen Clarke

President and Executive Director

Lawyers’ Committee for Civil Rights Under Law

1500 K Street NW, Suite 900

Washington, DC 20005

Natalie Landreth (Chickasaw) Senior Staff Attorney

Native American Rights Fund 745 West 4th Ave., Suite 502

Anchorage, AK 99501

Cc:      Megan Brennan United States Post Master General 475 L’Enfant Plaza SW Washingto