Protecting the freedom to vote for all eligible Americans is of fundamental importance in a democracy founded upon the consent of the governed. One of the most serious threats to the protection of that essential right is the increase in organized efforts, led by groups such as the Tea Party affiliated True the Vote and others, to challenge voters’ eligibility at the polls and through pre-election challenges. Eligible Americans have a civic duty to vote, and government at the federal, state, and local level has a responsibility to protect voters from illegal interference and intimidation.
As we approach the 2012 elections, every indication is that we will see an unprecedented use of voter challenges. Organizers of True the Vote claim their goal is to train one million poll watchers to challenge and confront other Americans as they go to the polls in November. They say they want to make the experience of voting “like driving and seeing the police following you.”1 There is a real danger that voters will face overzealous volunteers who take the law into their own hands to target voters they deem suspect. But there is no place for bullies at the ballot box.
Even in states with clear legal boundaries for challengers and poll watchers, too often these boundaries are crossed. Laws intended to ensure voting integrity are instead used to make it harder for eligible citizens to vote – particularly those in communities of color. Moreover, the laws of many states states fall short when it comes to preventing improper voter caging and challenges. This should concern anyone who wants a fair election with a legitimate result that reflects the choices of all eligible Americans.
Clear rules that protect voters from improper removal from the rolls by voter caging and challenging, as well as from intimidating behavior at the polls, can help prevent interference with voter rights. This report describes the threat posed by potential voter challenges in the 2012 elections, and assesses the extent to which ten key states — Colorado, Florida, Missouri, Nevada, New Hampshire, North Carolina, Ohio, Pennsylvania, Texas and Virginia — are prepared to protect the rights of eligible voters to cast a ballot in the face of such challenges. The ten states examined here include states where races are expected to be competitive, which makes voters in those states particularly vulnerable to challenges. We also survey states where a history of aggressive voter challenge programs in recent elections threatened to intimidate voters or interfere with their access to the ballot.
This report first provides background on the current threat of overly aggressive voter challenge tactics and the history of such efforts in previous elections. The report then details what is permissible and legal when it comes to challenging a voter’s eligibility, both before and on Election Day and inside and outside the polling place. We analyze laws in ten states governing:
- The process for challenging a registered voter’s right to vote before Election Day and the use of voter caging lists;
- The process for challenging a registered voter’s right to vote on Election Day;
- The behavior of poll watchers or observers at the polls on Election Day; and
- Protections for voters against intimidation, outside and inside the polls.
The report measures the extent to which each state’s laws protects voters’ rights in these areas, and assesses them in a set of comparative charts as satisfactory, mixed, or unsatisfactory. Each section includes recommendations for best practices in each of the areas we examine.2
In examining the ten states’ laws governing challenges to voters’ right to vote before Election Day, including the use of voter lists created through caging or other unreliable practices, we find Colorado, Nevada, and Ohio are satisfactory, North Carolina and Texas are mixed, and Florida, Missouri, New Hampshire, Pennsylvania, Virginia - five out of the ten states - unsatisfactory.3
In assessing these states’ laws governing challenges to voter’s right to vote on Election Day, and procedures for determining those challenges, we find that while some of the ten states have practices that protect voters’ rights, other states need improvement.4
- Texas does not allow for any voter challenges on Election Day, and Ohio only allows challenges by election officials; Colorado, New Hampshire, and North Carolina also have satisfactory protections for voters from improper Election Day challenges.
- Missouri, Nevada, and Virginia have laws that are mixed, with some provisions that protect voters’ rights but also room for improvement.
- Florida and Pennsylvania have laws with unsatisfactory protections to guard against inappropriate Election Day challenges to voter eligibility.
Our analysis of these states’ laws governing poll watchers or observers and their conduct at the polls shows they are also mixed in the extent to which they protect voters’ rights. The laws of Colorado, Nevada, North Carolina, Ohio, and Virginia are satisfactory; Florida, Missouri, and New Hampshire are mixed. However, Pennsylvania and Texas allow behavior by poll observers or poll watchers that could endanger voting rights.5
We also summarize these states’ laws protecting voters from intimidation, both outside and inside the polls. State and federal laws barring intimidation of voters can be used to protect voters from harassment.6 However, the efficacy of these protections depends on robust enforcement by election administrators and law enforcement officials.
We call upon election administrators and officials with the Department of Justice to take steps in advance of and during the elections to protect voters from bullying at the ballot box. Our intent is to help minimize the level of activity that moves from positive civic engagement to voter intimidation and suppression. There must be zero tolerance for bullying behavior that stands between an eligible voter and her ballot.
Caging – the practice of compiling a list of voters based on returned mail for the purpose of challenging their eligibility to vote. A caging list is compiled by conducting a mass-mailing and collecting the names of voters where the mail was returned. Lists may also be built by comparing different databases. Although many caging lists contain inaccuracies or are based on unreliable data, the list is often used to purge voters from registration rolls, or to challenge voters’ eligibility.
Challenge – a formal assertion that a person is not eligible to vote. Depending on the state, challenges may be made during a pre-election period or made in person on Election Day. States vary in terms of who may challenge a voter’s eligibility and the process for determining a voter’s eligibility once it is challenged. The potential for abusing voter challenges is high, particularly where organized groups seek electoral gain.
Challenger – anyone who challenges a voter’s eligibility to vote, whether on or before Election Day. Many states allow any registered voter in the appropriate jurisdiction to serve as a challenger, whereas other states have specific criteria and an official process for designating challengers.
Deceptive practices – the intentional dissemination of false or misleading information about the voting process in order to prevent an eligible voter from casting a ballot, such as by providing misinformation about when or where to vote.
Electioneering – the act of campaigning for a particular candidate, issue, or party. Most states prohibit electioneering on Election Day in the area near the entrance to the polling place.
Poll watcher – a person, generally appointed by a candidate or a political party, authorized to observe the implementation of Election Day procedures at a polling place. In some jurisdictions, poll watchers are referred to as poll monitors or observers. States have different rules governing what these individuals can and can’t do inside the polling place.
Provisional ballot – a ballot used to record a vote when election officials cannot determine a voter’s eligibility or qualifications to vote on Election Day. A provisional ballot will be counted only if the voter’s eligibility or qualifications are verified within a prescribed time after Election Day, through a process that may vary from state to state. In some states, individuals who are challenged on Election Day may be required to use provisional ballots. Provisional ballots often are not counted.
Purging – when done properly, purging is the process of removing dead or ineligible voters from the voter roll so as to comply with the National Voter Registration Act (NVRA). Sometimes, purging leads to eligible voters being improperly removed from the registration rolls, for instance by using caging lists to remove names based on flawed data and inaccurate procedures.
Voter intimidation – the use of threats, coercion, harassment or other improper tactics to interfere with the free exercise of the right to vote. Violence or the threat of violence is universally recognized as illegal forms of voter intimidation. There are significant differences across states as to which forms of non-physical voter confrontation and challenges rise to the level of intimidation or are otherwise unlawful. Many states prohibit private citizens or poll watchers from confronting or challenging voters within the polling place and/or making video, audio, and photographic recordings of voters within or around the polling place, or, more generally, from interfering with the proper conduct of the election.
Elections in America should be free, fair, and accessible. Eligible Americans should not have to overcome burdensome barriers to cast their ballots. Unfortunately voters in recent elections have encountered wrongful challenges and intimidation as partisan groups have launched organized efforts in key battleground states and targeted counties. Given the high stakes, voter challenges also are expected to be a major tool used by partisans in the November 2012 elections.
Unwarranted challenges to voters’ eligibility can lead to problems at the polls for everyone seeking to cast a ballot by depleting resources, distracting election administrators and leading to longer lines for voters. Such activities present a real danger to the fair administration of elections and to the fundamental freedom to vote.
Wrongful Challenges and Intimidation in 2012: Reasons for Concern
Although voter challenges have been used for decades by partisans seeking electoral advantage,7 a new threat emerged in 2010 when an organized and well-funded Texas-based organization with defined partisan interests, the King Street Patriots, through its project True the Vote, was observed intimidating voters at multiple polling locations serving communities of color during early voting in Harris County.8 Members of this Tea Party-affiliated group reportedly interfered with voters — allegedly watching them vote, “hovering over” voters, blocking lines, and engaging in confrontational conversations with election workers.9 Under Texas law, poll watchers are not allowed even to speak to a voter.
These activities have not been limited to Texas.
In a 2011 special election in Massachusetts, a Tea Party group was reported to have harassed Latino voters and others at the polls in Southbridge, Massachusetts. The Southbridge town clerk protested these actions, reporting that targeted voters left saying, “I’ll never vote again,” while a retired judge witnessed “citizens coming from their voting experience shaken or in tears.”10
In the June 2012 Wisconsin recall election, many students reported being challenged by True the Vote poll watchers, as the organization even mocked the students on Twitter.11The Wisconsin Government Accountability Board issued a statement saying “in recent elections we have received disturbing reports and complaints about unacceptable, illegal behavior by observers. Voters expect a calm setting in which to exercise their right to vote.”12
Now active in 30 states, True the Vote has made it clear that it intends to ratchet up its activities in 2012.13 The group is coordinating efforts throughout the country to purge the voter rolls, issue citizen challenges to registrations based on its own criteria and recruit poll watchers for Election Day. At its annual 2012 conference, leadership of the group announced that it “anticipates training 1 million poll watchers around the country for this year’s election.”14 In itself the training of poll watchers might not be worrisome, but the inflammatory language used to inspire this group of volunteer activists makes it so.
For instance, True the Vote’s founder, Catherine Engelbrecht, has said “we see again with this administration … it’s just stunning the assault on our elections that we’re watching gain steam with every passing day, so we found ourselves to be unwittingly on the front lines of an issue that I think will be the inflection point for this election.”15 A reporter attending True the Vote’s Colorado State Summit described how one speaker told the crowd that “they should enjoy bullying liberals because they were doing God’s work. ‘Your opposition are cartoon characters. They are. They are fun to beat up. They are fun to humiliate,’ he intoned. ‘You are on the side of the angels. And these people are just frauds, charlatans and liars.’”16
King Street Patriots has sponsored sweeping and unsubstantiated claims questioning the legitimacy of democratic participation by low-income persons and communities of color. For example, in 2011, King Street Patriots hosted a $100 plate dinner featuring Matthew Vadum, who has penned articles opining that it is un-American to register the poor to vote, writing, “how else can you justify a law that mandates that welfare recipients be given — be encouraged — to vote when they’re there in the cheese line picking up their check?…You shouldn’t be encouraging people to destroy the country, you shouldn’t be encouraging people to vote themselves benefits from the government.”17 Tom Fitton, president of Judicial Watch, a close partner of True the Vote, said “I fear the Obama gang is setting themselves up to steal the election” with the “illegal alien vote”18 and also accused the president of wanting “to register the food stamp army to vote for him.”19 In a letter sent to “Friends” this August he wrote “[a]s the scope of the Left’s efforts to corrupt and steal the 2012 elections become even more clear, it is absolutely vital that lawful voters like you and thousands of other patriots have the tools at hand to blow the whistle on voter fraud.”20 With comments about the “illegal alien vote” and “the food stamp army,” King Street Patriots and their allies have created a climate of fear that voter fraud is rampant in minority precincts and used that fear to justify their discriminatory targeting of poll-watching efforts – again, without evidence to support the targeting.21
As recently as July 31, 2012, True the Vote reportedly mailed letters to 160 counties alleging that they were not compliant with the National Voter Registration Act (NVRA) for failing to conduct voter registration list maintenance programs in advance of the November elections.22 A True the Vote spokesperson stated that the organization did not “expect these [notices] to go ignored” and that it “expects the counties to take proper action to clean their voter rolls well before Election Day in November.”23 True the Vote demanded proof of compliance with their demand for vote-cleaning prior to the election otherwise they would commence litigation.24
There is nothing wrong with wanting accurate voter rolls. However, True the Vote’s notices are at odds with the very statute they claim to be enforcing, because the NVRA requires that any general list maintenance program resulting in the systematic removal of names of ineligible voters must be completed no later than 90 days before Election Day.25 The reason such list maintenance programs must be completed at least 90 days before the election is to ensure that removal notices do not confuse eligible voters about their registration status so soon before an election. To be clear, election officials in the counties where True the Vote “expects to take proper action … well before Election Day in November” would violate the NVRA should they conduct a purge within 90 days of the election.26
The repeated use of caging in recent election cycles, the emergence of private groups that organized to target communities of color for voter challenges in 2010, the avowed plans of the King Street Patriots and True the Vote to massively expand these activities in 2012, and the high stakes of the upcoming presidential election, all provide clear warning that pre-election and polling place challenges may see unprecedented use in this election year. No matter who is organizing or leading the charge, it is important that all participants understand the rules and respect the right of all Americans to vote free of intimidation or obstruction.