Bullies At The Ballot Box: Protecting The Freedom To Vote Against Wrongful Challenges And Intimidation
Bullies At The Ballot Box: Protecting The Freedom To Vote Against Wrongful Challenges And Intimidation
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.11 The 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.
History of Wrongful Challenges and Intimidation
The practice of individuals challenging the rights of voters to cast a ballot at the polling place has a troubled history in American elections.31 There was a serious resurgence of the practice in the 2004 election, and, in 2010, the confrontational approach of certain parts of the Tea Party movement moved dangerously into the polling areas. The following examples illustrate that all too often plans to challenge voters that are implemented in the name of voting integrity are really tactics meant to seek electoral advantage by manipulating the voter pool.
In 1982 the Democratic National Committee (DNC) alleged in a lawsuit against the Republican National Committee (RNC) that the RNC was engaging in discriminatory voter caging and voter intimidation efforts focused on predominantly African American and Latino neighborhoods.32 The parties eventually entered into a consent decree, important parts of which remain in effect today, which forbade the national RNC from engaging in voter caging operations.33
In spite of the consent decree, Republicans were reportedly planning to use vote caging in 2004.34 A document developed in part by a lawyer for the Bush-Cheney campaign and distributed for use by state GOP officials provided a template for vote caging; an email from the same lawyer noted that Nevada was one of the states where caging was possible, because they had a list which could be used for that purpose.35 The effort to identify registered voters to challenge in states like Nevada was described by the Washington Post as “the most robust in recent history.”36 A former state Republican Party executive director attempted to cage and challenge over 17,000 voters in Nevada prior to Election Day, but election administrators rejected the mass challenge.37
After the 2004 election, detailed plans to challenge the eligibility of voters who were expected to support Democratic presidential candidate John Kerry in key swing states were discovered in 43 pages of email sent between RNC employees and the Bush-Cheney campaign.38 The emails showed that staffers had designed a plan to compile lists of voters to challenge, targeting likely-Democratic voters in New Mexico, Ohio, Florida, Nevada, and Pennsylvania.39 The RNC planned to send letters to newly registered voters to see whether voters still lived at their registered addresses. If the letter could not be delivered, the name was added to the list of voters to be challenged on Election Day.40 In emails that were made public, under the subject line “Voter Reg. Fraud Strategy conference calls,” RNC staffers referred to the plan as a “goldmine” and suggested that the plan should be expanded to more states.41 Another email, dated October 5, 2004, expressed concern that the plan ran the risk of having “GOP fingerprints”on it.42
In Ohio, the challenge list targeted predominantly minority, urban, and Democratic districts.43 It was estimated that “in Ohio, all of the precincts in about a dozen counties that contain 91 percent of the state’s black population—including urban areas like Cleveland, Cincinnati, Dayton, Toledo, and Akron” were targeted by Republican challengers.44
And in Wisconsin, the state Republicans “used the U.S. Postal Service software to scrutinize the addresses of over 300,000 registered voters”—but only in heavily Democratic Milwaukee.45 The party challenged 5,600 Milwaukee voters.46 After the Milwaukee city attorney reviewed the list, he found that many of the alleged nonexistent addresses actually did exist.47 While party officials claimed that this new level of scrutiny was needed to thwart possible fraud, at least one Republican strategist was more candid after Election Day, telling the New York Times that the challenges were “a big head fake,” a way to distract Democrats from getting out the vote at the crucial last hours.48
As discussed above and throughout the report, these problems have persisted in more recent election cycles. In 2010, Illinois GOP Senate candidate Mark Kirk was recorded talking about a massive poll watcher operation in minority communities.49 In September 2010 the organization “One Wisconsin Now” obtained audio recordings of Tea Party leaders planning to work with the GOP to challenge voters on Election Day—largely in minority and student communities.50
In Minnesota, the Tea Party-backed “Election Integrity Watch” offered a $500 bounty to anyone who provides tips about fraud — perhaps encouraging already zealous activists to become over-zealous at the polls.51 They also advised volunteers to look for non-citizen voters. It is unclear, however, how a poll watcher would know a voter’s citizenship status — other than by judging a voter’s appearance or questioning them in violation of the law. 52 This same organization urged its volunteers to take pictures and videotape voters at the polls — tactics that sometimes have been used improperly to intimidate voters over the last several decades.53 The National Director for ResistNet, a Tea Party networking site, suggested that volunteers use concealed cameras; the site “admits that such tactics could be illegal but . . . suggests how activists might be able to skirt the rules: ‘It is illegal to video the polling place, but you can video the birds on top of the polling place or the dog sitting in front of it. If your video of birds or dogs happens to include voter vans, well...’”54
Although many of these examples have involved activities by Tea Party or Republican groups, there was also an allegation of voter intimidation in Philadelphia by two members of the New Black Panther Party in 2008. The Department of Justice obtained a default judgment against one of the defendants who allegedly brandished a nightstick and made intimidating statements, enjoining him from engaging in future acts of intimidation,55 but some critics have contended that the Department of Justice should have taken even stronger action and should not have dismissed claims against other defendants.56
In a high stakes political environment, the rules governing acceptable behavior at the polls need to be clearly understood by activists, by elections officials, and ultimately by voters. Eligible Americans who undertake to fulfill their civic duty of voting should have assurance that they will not be impeded in exercising their freedom to vote.
State Laws on Challenging Registered Voters before Election Day and Voter Caging Practices
In this section, we examine how the laws in ten states apply to challenges to voter registration before Election Day, often on the basis of building lists of voters to challenge through caging, database comparisons, or list-combing and comparisons to public records.57 Specifically, voter caging is the practice of sending non-forwardable mail to registered voters and using any returned mail as the basis for building lists of voters to challenge. Challengers, often motivated by a partisan interest in suppressing turnout of key constituencies, may rely on other dubious investigatory methods and data that are wholly inadequate (and inapplicable) to voter eligibility. True the Vote, for example, is reported to “allow volunteers to scour voter registration records for irregularities” by providing “a database to compare voter rolls with other public records.”58
True the Vote’s software and vetting standards “draw on the power of Internet organizing and Tea Party networks.”59 Participants look for inconsistencies between driver’s license databases and voter registration databases or even jury lists.60 Lists are compiled based on a number of reasons – “[i]f they don’t like the way a person’s signature varies from form to form, it is flagged as suspicious. If they see that too many voters are registered at an address, it is flagged.”61 True the Vote’s national research director explained that “[w]hen you find 80 [registered] at an empty lot, you push a button and all 80 people get challenged.”62 One volunteer told reporters that she has used the database with her own state “election integrity” group, and has used social media and websites like whitepages.com and peoplefinders.com to research voters.63 Such tactics prompted one county election official to say that she is “not sure that this group does understand state law . . . . Because a group comes out and says these individuals (should be off the rolls) based on research from Facebook and LinkedIn, that’s just not an acceptable source.”64
As noted in the examples of described above, abusive caging and list-building practices can improperly disenfranchise eligible voters when these lists are used to target voters for removal from the voting rolls. This section summarizes each state’s laws that regulate challenges to voters’ eligibility before Election Day. It points out areas that may need clarification or improvement in order to protect voters’ rights and improve the fairness of the process.
Colorado’s procedures for challenging registered voters include some of the most specific statutory protections of the ten states we examined. Importantly, pre-Election Day challenges to voter registration must be filed with the county clerk and recorder no later than sixty days before any election.65 This should guard against extensive last-minute scrambles in the few weeks before Election Day.66 Grounds for challenge include citizenship, residency, and age.67 Challenges must be made in writing and include the basis for the challenge, the supporting facts, and “some documentary evidence to support the basis for the challenge.”68 This requirement is helpful because it requires more than mere allegations, thereby decreasing the risk that frivolous challenges will affect too many voters. However, anyone registered to vote in Colorado is entitled to challenge any person whose name appears in a county registration record.69 This is problematic, because it could allow large-scale challenges by a few coordinated actors state-wide.
Hearings are required in Colorado, which provides important protections for challenged voters. No later than thirty days after filing the challenge, the county clerk and recorder must hold a hearing at which the challenged registrant is entitled to appear.70 Critically, the challenger is required to appear and bears the burden of proof of the allegations in the written challenge.71 Within five days of the hearing, the county clerk and recorder must make a decision based on the sufficiency of the evidence to reject the challenge, accept the challenge and cancel the elector’s name from the registration book or mark the voter as “inactive,” which triggers Colorado’s procedures concerning voters who fail to vote in a general
election.72 Marking the voter “inactive” occurs if the county clerk and recorder “finds some evidence but not sufficient evidence to support the allegations in the challenge.”73
Colorado’s law protects the rights of voters by requiring that the person who brings the challenge show up and prove his or her allegations before the challenged voter is kicked off the registration rolls. It is also laudable that challenges are not all-or-nothing, and that insufficient evidence does not result in automatic cancellation of a voter’s registration.74 However, there is room within Colorado law to clarify what it means for a county clerk to “find some evidence but not sufficient evidence to support” allegations, particularly if the remedy for that situation is marking the voter as “inactive.”75 Colorado should also restrict the people that can make pre-Election Day challenges to only voters registered within the same precinct.
Since 2000, Florida remains a prominent battleground state. Florida also has the highest foreclosure inventory after the financial crisis of 2008.76 The subsequent changes in residency makes Florida particularly fertile ground for challenges to voter registration based on residency. Unfortunately, Florida’s procedures for voter eligibility challenges before Election Day are insufficiently voter protective.
Florida law requires pre-Election Day voter challenges by private citizens to be filed no sooner than 30 days before an election.77 Any registered elector in Florida may challenge the right of a person to vote, but they may only challenge other voters registered in the same county, which is an important limitation.78 Further, the challenge must be in writing and contain an oath that is specifically prescribed by the statute governing voter challenges, including the reasons for which the challenger believes a registered voter is “attempting to vote illegally.”79 Florida law provides that making a frivolous challenge to any person’s right to vote is a first degree misdemeanor, which carries the potential for prison time and fines.80
The grounds for challenge are not explicitly outlined under Florida law other than that the challenger must give a valid “reason” the voter is “attempting to vote illegally.”81 The clerk must then deliver to the challenged voter a copy of the oath and reasons for challenge.82 However, there is no requirement that hearings be held, and no specific provision ensuring that the registered voter is presumed to be eligible unless proven ineligible. The processes for resolving a pre-election voter challenge should be clarified.
A challenged voter retains the right to vote provisionally.83 Unfortunately, for that provisional ballot to count, a voter must deliver evidence supporting their eligibility to the supervisor of elections within two days of the Election. This process unduly burdens the rights of eligible voters. A voter who is challenged on the basis of her residence only has the chance to prove her eligibility at the polls – which would allow her to vote a regular ballot - in order to vote a regular ballot under very limited circumstances, i.e., she moved precincts within the original county of registration or is a uniformed military voter.84 These limited circumstances are far too narrow and restrictive, and could force many challenged voters to vote provisionally.
Unlike other states discussed in this report, Missouri law does not provide a step-by-step process for adjudicating pre-Election Day challenges to voter registration status. Instead, a broadly worded statute grants election authorities a blanket right to “investigate the residence or other qualifications of any voter at any time it deems necessary.”104 Election officials are required to investigate challenges to voter qualifications if the challenges are brought more than ten days before an election; investigations “may” be deferred to after an election if they are raised within ten days of Election Day.105 The law requires election authorities to investigate “material affecting any voter’s qualifications brought to [their] attention from any source.” Importantly, implicit in the statute is a requirement that challengers must provide more than mere lists of voters, because the law requires election officials to investigate “material” concerning a voter’s qualifications provided by any source. Authorities should consider strengthening this requirement to something like the supporting “documentary evidence” requirement in Colorado. They should also require hearings before cancelling registrations, and require challenges to be brought in writing, under oath, and based on personal knowledge of the challenger. Missouri law should make clear that the burden of proving ineligibility lies on the challenger, not the registered voter, and there should be penalties for frivolous challenges. Legislation banning the practice of using caging lists to strike voters from the registration rolls was introduced in Missouri in 2008106 and 2009107, but did not become law.
Nevada law generally does a good job protecting registered voters from improper pre-Election Day challenges. In Nevada, a voter may only challenge the registration status of any other voter registered to vote in the same precinct.108 This jurisdictional requirement of precinct-level commonality between the challenger and the challenged voter is an important safeguard against widespread voter challenge campaigns that lack precinct-level organization. There is also a narrow six-day window for written challenges to take place before Election Day. Written challenges must be signed by the challenger, include the grounds for challenge, and must be based on personal knowledge.109 This provision could be improved by requiring that challenges be made under oath. Within 5 days of a challenge being filed, the county clerk must mail a notice to the person whose right to vote is challenged.110 Fortunately, Nevada law requires the clerk to include the following sentence in the mailed notice: “Even though your right to vote has been challenged, you are still registered and eligible to vote. Please contact this office immediately for information concerning how you may respond to the challenge.”111 This is an extremely good provision, as it makes clear that a failure to respond will not result in automatic cancellation. If the person fails to appear “within the required time” or doesn’t cast a vote by the end of the second general election after the notice is mailed, the clerk is required to cancel the person’s registration.112 This provision is protective of voters’ rights, because it allows voters the opportunity to cure a challenge at the polls within two subsequent general elections, which is a generous period of time.
Challenges in Nevada may be based on a variety of grounds, including identity and residence.113 To overcome a challenge and vote a regular ballot at the polls, the challenged voter must swear or affirm, under penalty of perjury, information concerning her eligibility to vote.114 For certain non-residence challenges, the voter can affirm her identity and vote a regular ballot.115 However, if the challenge concerns the residence of a registered voter, that registered voter may not vote a regular ballot unless she “furnishes satisfactory identification which contains proof of the address at which the person actually resides.”116 Otherwise she must vote at a “special polling place.”117 Many voters may lack the “satisfactory identification” to quickly restore their status as duly-registered voters.
In New Hampshire, the law governing pre-Election Day challenges is problematic. There are two procedures that could be used. First, any citizen may file a complaint in superior court stating that another citizen is “illegally” on a voter roll.118 Then a judge must order that a copy of the complaint be served upon the town election supervisors and challenged citizen with a time and place for “an immediate hearing.”119 The judge hearing the case can then order the name removed from the checklist “as justice requires” after the hearing.120
Alternatively, New Hampshire allows anyone to submit a “request for correction of the checklist [voter roll] to the supervisors of the checklist or to the town or city clerk based upon evidence that a person listed on the checklist is not qualified as a voter in the town or ward.”121 Then, election supervisors (elected individuals responsible for maintaining voter rolls) must “determine whether or not it is more likely than not that the person’s qualifications are in doubt.”122 If so, the supervisors must send a notice to the challenged voter granting 30 days to “provide proof” of qualifications to vote.123 Failure to respond to the 30-day-notice or failure to provide proof results in removal from the checklist.124 There is no requirement that the challenger be from the same town or district, or even from New Hampshire, which could give rise to frivolous challenges from out-of-state challengers. There is also no requirement that the notice be sent by forwardable first-class mail, so there is a risk that a challenged voter might not even properly have notice that his or her registration was challenged. Finally, there is no statutory requirement for a hearing before a voter is removed from the rolls; instead, the burden of proof shifts entirely to the challenged voter to provide evidence as to why they should remain on the rolls. New Hampshire law has weak protections for voters facing pre-Election Day challenges. A lot of discretion lies with the election supervisors who make the determination as to whether any individual challenge meets the standard that it is “more likely than not” that a voter’s eligibility is in doubt. 125 Elections supervisors should have high standards for what is acceptable “evidence” that a registered voter “is not qualified as a voter,” particularly in the case of mass challenges based on caging lists.
In North Carolina, the law provides strong protection for voting against improper pre-Election Day challenges. Any registered voter of a county may challenge the registration of any other voter in the county, but there are important safeguards against abuse.132 No challenges are allowed after the 25th day before an election (other than on Election Day itself).133 Challenges must be in writing, under oath, and must specify the reasons why someone should not be entitled to remain registered to vote.134 These are important protections for voters, as these procedural requirements will make it harder for frivolous challenges to create havoc. Grounds for challenge include residency, age, felony conviction, citizenship, or that the person is not who he or she appears to be.135 Once challenged, the board of election must schedule a hearing and take testimony under oath concerning the challenge.136 Importantly, the burden of proof is on the challenger.137 Fortunately, North Carolina law specifies that “[c]hallenges shall not be made indiscriminately” and the challenge must be substantiated by affirmative proof.138 This is particularly important because having substantiated proof, instead of simply making a claim as to why a voter should be challenged, places accountability on the challenger and prevents many frivolous challenges at an early stage. What is unfortunate, however, is North Carolina’s statutes specify that the “presentation of a letter mailed by returnable first-class mail … and returned because the person does not live at the address shall constitute prima facie evidence that the person no longer resides in the precinct.”139 While there are procedural protections in place, including hearings, this particular provision of North Carolina law renders voters vulnerable to caging.140
In Ohio, a state at the heart of caging controversies in 2004, any registered voter may challenge another voter’s right to vote prior to the nineteenth day before the election.141 Although this is not ideal, there are formalities that a challenger must follow that make frivolous challenges more difficult. The challenge may be made in person or by a letter addressed to the board of elections, must state the ground upon which the challenge is made, and must be signed by the challenger giving the challenger’s address and voting precinct.142
In August 2012, the Ohio Secretary of State issued a new directive providing valuable guidance for administering Ohio’s pre-Election Day challenge statutes.143 It largely mirrors a 2008 directive.144 Accordingly, hearings are required before cancelling a voter’s registration.145 Further, the directive grants election boards discretion over whether challenges are “facially sufficient” enough to hold a hearing in the first place.146 This is important because it provides at least one additional screen from frivolous challenges by requiring an initial assessment by the boards of elections. Furthermore, the directive states that mail returned as “undeliverable” is insufficient grounds to grant a challenge.147 The directive also states that evidence of a foreclosure action is also insufficient to grant a challenge.148 These are outstanding and important safeguards against voter caging, because they explicitly prohibit the use of undeliverable mail to challenge voter rights. Widespread caging campaigns frequently use this technique, which can produce inaccurate and flawed results. These protections safeguard the rights of voters facing foreclosures in the wake of the largest recession in a generation.
Unfortunately, the 2012 directive failed to carry over language from the 2008 directive that explicitly required the challenger to bear the burden of proving why the challenge is justified with “clear and convincing evidence.”149 Also, the challenger should be required to make the challenge under oath.
The laws in Pennsylvania are problematic and among the worst examined for this report. First, Pennsylvania law has two procedures. One allows pre-Election Day challenges by affidavit, and the other by petition.165 As for the affidavit procedure, the law is silent as to when the challenge must be made.166 This could lead to serious administrative burdens if mass voter challenges are filed in the immediate run-up to Election Day. For challenges by petition, those must be filed no later than 10 days before the election.167 In both cases, Pennsylvania law is challenger-friendly and does not adequately protect the rights of those challenged inappropriately.
Any voter in Pennsylvania may be challenged through an affidavit by a “commissioner, registrar or clerk or by a qualified elector of the municipality.”168 The challenger is required to file the affidavit explaining the “reason” for that challenge but is under no obligation to provide any documentary evidence or anything to substantiate the allegations.169 This is problematic because it could lead to indiscriminate and flimsy reasons for a challenge even though the complaint takes the form of an affidavit. Moreover, once an affidavit challenge is made the burden shifts to the challenged voter to justify why she should stay on the rolls. The challenged voter must respond in a written, sworn statement, and must produce “such other evidence as may be required to satisfy the registrar or commissioner as to the individual’s qualifications as a qualified elector.”170 This is highly problematic. While the challenger is under no obligation to provide any documentary evidence to support an allegation that a voter is improperly registered other than an affidavit, a challenged voter must produce evidence over and above an affidavit to satisfy a government official that she is lawfully registered. This could provide onerous for voters who are targets of caging or other frivolous challenges, with little to no burden on the challenger. Only if the “challenged individual establishes to the satisfaction of the commission” her right to be registered is the matter is resolved in favor of remaining registered.171 Otherwise, the registration shall be cancelled.172
Similarly, for challenge by petition, any qualified elector may petition the commission to cancel or suspend the registration of any other elector but must do so under oath or affirmation.173 The petition must set forth “sufficient grounds for the cancellation,” and include either a) notice of the time and place when the petition would be given personally to the challenged elector at least 24 hours prior to filing; or b) a statement that the challenged voter “could not be found” at the challenged voter’s residence and listing the person that lives at that residence who “has declared that the person was well acquainted” with the name of everyone living at the residence and the challenged voter no longer resided at that address.174 Then, upon receipt of the petition, the commission is required to cancel or suspend the registration “unless the registered elector so registered appears and shows cause why this action should not be taken.”175 Again, this is highly problematic and rife with opportunities for disenfranchisement. It is good that personal service or a sworn oath attesting to hearsay about an individual’s residence is required to be made in the petition. However, automatic cancellation procedures and shifting the burden of proof to the challenged voter, are unacceptable. These procedures may lead a voter to be kicked off the rolls without an opportunity to be heard.
In Texas, any registered voter may challenge the registration of another voter of the same county at a hearing before the registrar.176 If the grounds for challenge is based on residence, it must be filed at least 75 days before the election otherwise the registrar will wait to follow the challenge procedures until after the election (unless the challenged voter submitted a registration application after the 75th day and prior to the 30th day before the election, in which case this deadline does not apply).177 For other grounds, Texas law provides no set timetable for when a challenge must be filed. The challenger must file a sworn statement that states the specific qualification for registration that the challenged voter has not met.178 The challenge must be “based on the personal knowledge of the voter desiring to challenge the registration,” which could reduce the number of challenges by widespread caging campaigns so long as “personal knowledge” does not become a pro forma statement based on a cursory review of unreliable data.179 Unfortunately, whether a voter may attend a hearing before having her name removed from the rolls depends on the grounds for challenge. If the challenge is based on residence, the registrar is required to send a confirmation notice to the challenged voter.180 If the voter fails to send a response back to the registrar, the registrar is mandated to place the challenged voter on the “suspense list” that may ultimately result in a voter’s removal from the voter registration rolls for failing to vote in subsequent elections.181 If the challenge is based on any ground other than residence, the registrar must hold a hearing on the challenge.182
Virginia’s law is problematic in many respects as it applies to pre-Election Day challenges. First, challenges are based on whether a voter is “improperly registered.”183 The law is not clear about what makes a registration improper but fortunately does exclude residency from a reason for challenge.184 This significantly reduces the risk of challenges that rely solely on challenges to residency, which are usually a product of flawed caging operations, but it does not prevent challenges based on categories such as citizenship, age, or identity. The voter registration challenge process requires either the general registrar, or “any three qualified voters of the county or city” to make the challenge.185 Ordinarily, in an election system without sophisticated caging and challenge operations taking place in the state, this might present an important brake on the process, because it requires three voters to make the challenge, lessening the risk of one sole bad actor challenging in bad faith. However, as voter caging becomes more sophisticated, with organizations building caging teams that rely on unreliable data in choosing whom to challenge,186 Virginia could be faced with many three-person challengers. Once challenged, the registrar is required by Virginia law to post at the courthouse or publish in a county or city newspaper the name of registered voters that are to be cancelled by the general registrar. The list of names must be certified by the registrar and delivered to the county or city chair of political parties.
Fortunately, Virginia law requires the registrar to send the challenged voter, by mail, the reasons for cancellation, facts upon which the cancellation is based, and a time the registrar will hear testimony for or against the right of a challenged voter to remain on the rolls. The hearing must be during regular hours and cannot occur earlier than ten days after mailing the notice and “in no event within sixty days of the general election in November or within thirty days of any other election in the county or city.”187 Unfortunately, a registered voter’s failure to appear and “defend his right to be registered” results in automatic cancellation of the voter’s registration.188 This is highly problematic. Virginia should establish failsafe mechanisms that do not result in automatic cancellation based solely on a registered voter’s failure to appear at a pre-ordained hearing for which they may not have received adequate notice or may legitimately not be able to attend.
Recommendations for Addressing Caging & Pre-Election Day Challenges
Pre-Election Day challenges are rife with opportunities for mischief that will disenfranchise voters. States considering an overhaul to their pre-Election Day challenge regimes should require the challenger to maintain the burden of proof throughout any administrative hearing process and should require the challenger to provide documentary evidence supporting the specific grounds for challenge. Such challenges should be based on first-hand personal knowledge and be written sworn statements. Making frivolous challenges should be a misdemeanor, and a voter should only be able to challenge the rights of another voter registered in the same precinct.
Moreover, jurisdictions should consider requiring “preliminary” reviews of challenges to determine if a hearing is even required. Most jurisdictions appear to require automatic hearings when challenges are filed with no requirement to conduct a cursory review of a challenge to determine if it is with merit before scheduling a hearing. In other words, the grounds for challenge must be plausible before a hearing takes place and election officials should be granted the discretion to determine when a hearing appears warranted.
Jurisdictions should also require challenges to be filed within a specific period of time before an election, such as 60 or more days before an election. This will ensure that the administrative burdens of challenge hearings are not arduous and will lead to the orderly administration of the election. The immediate run-up to an election is fertile grounds for deceptive election practices that aim to confuse voters about the time, place, manner, or qualifications of voting, and election officials must have the resources and capability to respond to those sorts of activities without being distracted by strategically timed mass voter challenges.
Finally, voters should be given an opportunity to appear at a hearing before their registration is cancelled. Voters should also have the opportunity to vote regular or provisional ballots if failure to appear at a hearing results in automatic cancellation of registration and an opportunity to cure a challenge at the polls. Returned mail should not be considered prima facie evidence to sustain a challenge.
State Laws on challenging registered voters on election day and poll watcher behavior
This section discusses the interactions of people inside the polling place on Election Day who are neither election officials nor there simply to cast a vote. We analyze the laws regarding who can be at the polls and who can challenge voters and the process by which a challenge can be made and the validity of the challenge is decided. Some states allow poll watchers to be present inside the polls to observe the election but do not allow poll watchers to interact with voters. Other states allow any registered voter to challenge another voter’s eligibility when he or she shows up at the poll to vote. A voter’s eligibility to vote can be challenged on Election Day in Colorado, Florida, Missouri, Nevada, New Hampshire, North Carolina, Ohio (but only by an election official) Pennsylvania, and Virginia, but not in Texas.
We also make recommendations for best practices in regulating Election Day challenges. States must protect voters’ rights in the face of organized attempts to police polling places in ways that may intimidate eligible voters or unfairly target particular groups of voters for exclusion.
Colorado’s laws preventing improper Election Day challenges are excellent. In Colorado, voter challenges are permitted on Election Day by any poll watcher, election judge, or eligible elector of the same precinct.189 Challenges must be must be made in the presence of the person being challenged190 and must be made in writing, under oath and signed by the challenger under penalty of perjury.191 The challenger must set forth the specific factual basis for the challenge. 192 Under Colorado law, the bases for a challenge are citizenship, age, residency, and “all other questions to the person challenged as may be necessary to test the person’s qualifications as an eligible elector.”193
Depending on the basis for a challenge, a voter challenged on Election Day may be asked questions as prescribed by law.194 If the challenged voter answers satisfactorily and signs an oath attesting to her eligibility to vote, the voter may vote a regular ballot. If the voter does not answer the questions he may still vote a provisional ballot.195 Colorado law is pro-voter because the law provides for stringent requirements for challenges that provide some accountability. It is helpful that the law is specific about the process for determining the challenge. It sets out the questions to be asked of the voter, and by answering these questions under oath any eligible voter may cast a ballot that will be counted.
In Colorado, any eligible elector other than a candidate who has been designated by appropriate party officials can serve as a poll watcher.196 A poll watcher doesn’t have to be a resident of the county in which he is designated as long as he is an eligible elector in the Colorado.197 Poll watchers and persons other than the election officials and those admitted for the purpose of voting are not permitted within the immediate voting area or within six feet of the voting equipment or voting booths and the ballot box, except by authority of the election judges or election officials and then only when necessary to enforce the law.198 Poll watchers are not allowed to have cell phones, cameras, recording devices, laptops, or PDAs (Palm Pilot, Blackberry, etc.) in the polling place.199
In addition to poll workers, poll watchers, and voters, the only other people who may be present in the polling station are an Official Observer, who is appointed by the Secretary of State or the federal government and approved by the Secretary of State, and a media observer with valid media credentials.200 Political party attorneys are not permitted in the polling place unless they have been duly appointed as poll watchers. Poll watchers must swear an oath that they are eligible electors whose name has been submitted to the designated election official, and they must present the election judges or designated official a certificate of appointment.201 Poll watchers have the right to maintain a list of eligible electors who have voted, to witness and verify each step in the election’s conduct, to challenge ineligible electors, and to assist in correcting discrepancies.202 Poll watchers may observe polling place voting, early voting, and the processing and counting of ballots. It is a misdemeanor intentionally to interfere with a poll watcher discharging her duties.203
Poll watchers may not disrupt or interrupt any stage of the election or interfere with the election’s orderly conduct.204 They may track the names of electors who have cast ballots by using their previously maintained lists, but they may not write down any ballot numbers or any other identifying information about the electors. The watchers may not handle the poll books, official signature cards, ballots, or ballot envelopes, or voting or counting machines. Poll watchers may not interact with election officials or election judges, except that the designated election official in each precinct shall name at least one person at each polling place to whom watchers may direct questions.205 Poll watchers who commit, encourage, or connive in any fraud in connection with their duties, who violate any of the election laws or rules, who violate their oath, or who interfere with the election process may be removed by the designated election official.206
Florida law permits any elector or poll watcher in his or her county to challenge the right of any voter to vote on Election Day in writing and under oath.207 The challenge must be filed with the clerk or inspector at the polls and describe why the challenger believes the voter is attempting to vote illegally.208 Importantly, Florida law provides for a penalty for a voter or poll watcher who files a frivolous charge – any one filing a challenge not in good faith commits a first degree misdemeanor.209 Unfortunately, a voter who is challenged must vote provisionally, and their provisional ballot will only be counted if the voter provides written proof that she is entitled to vote by five o’clock two days following the election.210 This requirement is overly burdensome and may endanger an eligible voter’s ability to vote.
Florida law requires that all watchers be allowed to enter and watch polls in all polling rooms and early voting areas in the counties where they have been designated, so long as each political party and each candidate has only one watcher in each polling room or early voting area at any time during the election.211 Each poll watcher must be a qualified and registered elector of the county in which she is appointed.212 No law enforcement officer may serve as a designated poll watcher.213 Designations must be made by a political party or candidate in writing on an official form to the supervisor of elections.214 The designation must be in writing, on an official form, submitted before the second Tuesday preceding the election, and poll watchers must be approved by the supervisor of elections on or before the Tuesday before the election.215 Florida could improve its law by adopting specific rules governing the behavior of poll watchers within the polls. For example, poll watchers should not be allowed to communicate with voters, and should be prohibited from videoing or taking photos. Florida should also specify that elections officials have grounds to eject any poll watchers that are interfering with the orderly conduct of the election or otherwise harassing voters.
Missouri allows voter challenges on Election Day. Only a registered voter who has been designated by the chair of the county committee of a political party named on the ballot may challenge a voter’s identity or voting qualifications.216 The designee must also be registered in the jurisdiction in which he or she will work as a challenger.217 The grounds for challenges include citizenship status, residency, age, incapacity, and certain categories of felon status.218 If a voter is challenged, it is up to a majority of the election
judges at a polling place to determine whether she will be allowed to vote a regular ballot.219 The voter may be required to execute an affidavit affirming her voting qualifications.220 Making false statements in the affidavit is punishable by fine or imprisonment.221 Voters are entitled to cast a provisional ballot upon executing an affidavit, even if election authorities determine a voter is ineligible.222 Unfortunately, the law does not provide specificity regarding the manner in which election judges are to determine whether a challenged voter should be allowed to vote. The law is pro-voter in that it only allows designated challengers to make a challenge when he believes the state election laws have been or will be violated.223 However, there do not appear to be requirements that challenges be made in written form, nor does there appear to be any method of accountability for challenges made in bad faith.224
In Missouri, each political party may designate a watcher for each place votes are counted, and watchers must be registered voters in the jurisdiction where the watcher will serve.225 However, no watcher may be substituted for another on Election Day.226 Watchers are authorized to observe the counting of votes and to report any election law violations or complaints of irregularity to the election judges or the election authority if not satisfied with the decision of the election judges.227 Watchers are prohibited from reporting the name of any person who has or has not voted to anyone.228
If any watcher or challenger interferes with the orderly process of voting, or is guilty of misconduct or any law violation, the election judges shall ask the watcher or challenger to leave the polling place or cease the interference.229 If the interference continues, the election judges shall notify the election authority, which shall take such action as it deems necessary, and it is the duty of the police, if requested by the election authority or judges of election, to exclude any watcher or challenger from the polling place or the place where votes are being counted.230
In Nevada, a voter may be challenged on Election Day by another voter registered in the same precinct.236 A challenger must submit a signed affirmation stating the basis for the challenge and that the challenge is based on personal knowledge.237 The requirements that challenges be made by voters within the precincts, in writing, and based on personal knowledge may discourage abuse of the challenge system by deterring large scale mass challenges.
Unfortunately, once a voter has been challenged, the process for determining the challenge is excessively burdensome for the voter, potentially confusing for poll workers, and could result in eligible registered voters being denied their right to vote. In all cases the challenged voter must execute an oath or affirmation of his eligibility to vote,238 but the exact procedure depends on the grounds on which the voter was challenged.239 A person challenged on residency grounds must also show “satisfactory identification which contains proof of the address at which he actually resides.”240
A person challenged on the basis that he is not the person he claims to be must show official photo identification or have a person vouch for the challenged voter’s identity; the vouching person must themselves be at least 18 years old and have photo identification, though there is not a requirement that they be registered.241 This is very problematic, as many people will lack the necessary identification, or not have it with them at the poll. As a result, many eligible voters may not be able to cast a vote that will be counted, unless they are vouched for successfully, under oath, by someone else over the age of 18.242 If a voter is successfully challenged on grounds of residency, he or she may only vote at a “special polling place” in the county clerk’s office or at such other locations as the county clerk deems necessary during each election.243 Such persons may only submit a vote for a limited subset of offices and questions.244 Moreover, these lengthy procedures are likely to result in longer wait times in precincts where voters are being challenged, imposing burdens on the other voters in the precinct.
Nevada also allows members of the general public to observe the conduct of voting at a polling place.245 Members of the general public are not permitted to photograph the conduct of voting at a polling place, nor may they make audio or video recordings of photograph the conduct of voting.246 Before any person will be permitted to observe the conduct of voting, he or she must sign a form stating that, during the conduct of voting, the person:
- may not talk to voters within the polling place;
- may not use a mobile phone or computer within the polling place;
- may not advocate247 for or against a candidate, political party or ballot question;
- may not argue for or against or challenge any decisions made by county election personnel;
- may not interfere with the conduct of voting; and
- may be removed from the polling place by the county clerk for violating the election laws or any of the above.248
Nevada’s laws prohibiting observers from speaking with voters in the polling place are clear and are protective of voters’ rights and privacy. A person observing the conduct of voting may remain in a designated area to observe activities conducted at the polling place so long as he or she does not interfere with voting.249 The designated area must allow for meaningful observation but may not be located anywhere that would infringe on the privacy of a voter’s ballot.250
New Hampshire’s laws are very protective of voting rights. In New Hampshire, any voter may be challenged by an election official, a designated challenger, or any other voter registered in the town or ward in which the election is held.251 Challengers may be designated either by the attorney general,252 or by a state, city, or town committee of a political party.253 A statement signed by either the attorney general or the appropriate chairman of a political committee is sufficient evidence of the authority of any such challenger.254 Challengers are “assigned by the moderator or other election officer presiding at the polling place to such position or positions within the polling place as will enable him to see and hear each voter as he offers to vote.”255 The New Hampshire statutes that regulate the appointment of challengers are clear that an appointed challenger may not be deprived of his or her authority to challenge a voter.256
All challenges, whether from designated challengers, officials, or members of the public, must be signed, under oath, and submitted in writing to a moderator.257 Upon receipt of a written challenge, the moderator must determine if the challenge to the ballot is well grounded.258 If the moderator determines that the challenge is well grounded, the moderator must reject the vote of the person challenged unless the voter submits an affidavit affirming, under penalty of voter fraud, that he is whoever he represents himself to be and that he is a duly qualified voter and resident of the appropriate town or ward.259 If the moderator determines that the challenge is not well grounded, the moderator must permit the voter to proceed to vote.260 However, no voter or designated challenger is permitted to challenge a person’s qualifications to be a voter at the election day voter registration table,261 which affords some protection to voters seeking to use the state’s Same Day Registration program.
New Hampshire does not give poll watchers or observers special legal status, but individuals are allowed inside the polls to observe the conduct of the vote.262 However, no person not authorized by law may stand or sit within 6 feet of the ballot clerk for purposes of observing the check-in of voters without the express permission of the moderator.263 Additionally, New Hampshire prohibits any person from interfering with any voter when the voter is “within the guardrail,” and violations are a misdemeanor.264 To improve its laws, New Hampshire should specifically prohibit watchers or observers from communicating with or recording voters.
North Carolina also has strong laws on its books to protect voters. In North Carolina, only an individual registered to vote in a precinct may challenge a voter at that precinct on Election Day.265 This is helpful in that it limits the ability to launch large-scale voter challenge operations. Grounds for challenges on Election Day include: residency, citizenship, ineligibility due to felony conviction, whether a voter has already voted in the election, or whether the voter is not who she claims to be.266 North Carolina law requires that challenges “shall not be made indiscriminately,” and a challenge can only be made if a challenger “knows, suspects, or reasonably believes [the challenged individual] not to be qualified and entitled to vote.”267 Each challenge must be made separately, in writing, under oath and on forms prescribed by the State Board of Elections, and the challenge must specify the reasons why the challenged voter should not be entitled to register.268
Once a challenge proceeding is initiated, elected officials are empowered to administer oaths to any person testifying as to the qualifications of the challenged voter, which could include the challenger at the discretion of the official.269 Challenges must be heard and decided by judges of election in the precinct before the polls close.270 Officials must explain the qualifications for voting and may then examine the voter and his or her qualifications.271 A challenged voter must make an oath or affirmation regarding her eligibility to vote; otherwise the challenge will be sustained.272 However, even once a challenger has done so, the elections officials may still refuse to allow the individual to vote a regular ballot “unless they are satisfied that the challenged registrant is a legal voter.”273 In all challenges, the presumption is that the voter is properly registered, and any challenge must be supported by affirmative proof.274 While it is good that the voter may proceed to vote upon swearing an affidavit, elections officials ought to have clear standards upon which they base their decision. The fact that the presumption is that the voter is properly registered and that the challenger has the burden of proof is very protective of voters. Moreover, mail returned as undeliverable is not admissible as evidence in a challenge hearing on Election Day.275 This is an important protection as undeliverable mail is notoriously unreliable as evidence of lack of qualification to vote and has been used in many partisan and racially motivated voter caging and challenge operations in the past.
Officially designated observers may also be present at the polling location on Election Day. Observers must be registered voters of the county for which they are appointed and must have “good moral character.”276 The chair of each political party in the county shall have the right to designate two observers to attend each voting place.277 The chair or the judges for each affected precinct may, however, reject any appointee for cause and require another be appointed.278 Observers must be appointed in writing to the county board of elections five days before the election.279
Observers may not electioneer at the voting place.280 They may not impede the voting process, nor may they interfere or communicate with or observe any voter casting a ballot.281 This prohibition on communicating with voters is helpful. Observers are also not allowed to videotape voters. According to a former North Carolina Attorney General, that would be “outside the permissible activities and inconsistent with the constitutional and statutory principles insuring unfettered elections for voters.”282 Subject to these restrictions, the chief judge and judges shall permit the observer to “make such observation and take such notes as the observer may desire.”283 Each observer is entitled to obtain a list of persons who have voted in the precinct so far that day at times specified by the State Board of Elections.284 The chief judge and judges of election may eject any challenger or witness for violation of any provisions of the election laws.285 These are excellent protections for voters on Election Day.
In Ohio, only judges of the election may challenge a registered voter on Election Day.286 This prohibition on Election Day challenges by individuals other than election officials, which was established in 2006, is an important protection for Ohio voters. It prevents partisan or biased challenges and avoids confusion and delay at the polls. Challenges can be based on age, citizenship, or residency.287 Depending on the grounds for challenge, the official asks certain questions and request identification and documentation.288 The grounds for presenting a challenge include: (1) The person is not a citizen of the United States; (2) The person is not a resident of the state for thirty days immediately preceding election; (3) The person is not a resident of the precinct where the person offers to vote; (4) The person is not of legal voting age.289 Voters who are able to provide the election official with proof or documentation of their eligibility may vote a regular ballot.290 Others must vote by provisional ballot.291
In Ohio, a poll observer must be a qualified elector in the state but not necessarily in the county in which she serves.292 Observers must be appointed either by a political party, a group of five or more candidates, or a ballot issue committee.293 The Board of Elections shall be notified of the names and addresses of the appointed observers and the precincts in which they will serve.294 The initial appointments must be made on official forms not less than eleven days before the election, and those forms may be amended until the afternoon before the election.295 Observers must present their certificates of appointment to the presiding judge of the precinct the night before or at the precinct on Election Day. Upon filing a certificate, the person named as observer in the certificate shall take an oath, to be administered by one of the election judges. The observer shall be permitted to be in and about the polling place for the precinct during the casting of the ballots and shall be permitted to watch every proceeding of the judges of elections from the time of the opening until the closing of the polls.296
Observers may move about within a precinct polling place “to the extent they do not disrupt or interfere with the election, take any action so as to intimidate voters, or put themselves in any position that could violate either the secrecy of the ballot or a voter’s privacy.”297 This is very protective of voters. Observers who serve during the casting of the ballots are only permitted to watch and listen to the activities conducted by the precinct election officials and the interactions between precinct election officials and voters. Observers may only watch as long as they do not delay election officials in conducting their official duties or “cause any delay to persons offering to vote.”298 Observers are permitted to take notes of their observations but may not make any photographic, video, or audio recordings that impede, interfere with, or disrupt an election, or in any way intimidate a voter or risk violating the secrecy of the ballot or voter privacy.299
No observer who serves during voting may interact with any precinct election official or voter while inside the polling place, within the area between the polling place and the small flags leading to the polling place, or within ten feet of any elector in line waiting to vote. An observer does not violate this section as a result of an incidental interaction with a voter or a precinct election official, such as an exchange of greetings.300An observer violating this rule must be warned once, and the presiding judge at that polling place may remove an observer for subsequent violations.301 If an observer is removed from the polling place, the presiding judge may request the observer’s certificate of appointment and return it to the Board of Elections indicating that the observer was removed from the polling location. 302
In Pennsylvania, election judges, “overseers of election,” election officers, and qualified electors may challenge a registered voter.303 A person can be challenged if attempting to vote outside the election district in which he or she resides, if he or she is not properly registered in the election district (except by court order).304 Pennsylvania’s laws do not contain sufficient protections for eligible registered voters. The law states that if a voter is challenged as to his identity or residence, the voter must present a witness – who is a qualified elector of the district – to swear to the voter’s qualifications.305 While a voter who is challenged is allowed to vote provisionally,306 this does not alleviate the concern that many voters will not go to the polls in pairs. The lack of restrictions on who may challenge a voter’s eligibility is also troublesome. Pennsylvania should improve its laws to limit the number of people who can challenge a voter’s eligibility, and improve the process for determining a challenge so that it is less burdensome and less likely to disenfranchise eligible registered Pennsylvanians.
Each candidate at any election may appoint two watchers for each election district in which he or she is running, and each political party that has nominated candidates may appoint three watchers at any general, municipal or special election for each election district in which its candidates are competing.307 Each watcher must be a qualified registered elector of the county in the election district.308 It is not required that a watcher be a resident of the election district for which he or she is appointed.309 Only one watcher for each candidate at primaries and for each party at general, municipal or special elections may be present in the polling place, from the time the election officers meet until the counting of votes is complete and the district register and voting checklist are sealed.310 All watchers present are required to remain outside the enclosed space.311 After the close of the polls, while the ballots are being counted or the voting machine is being canvassed, all the watchers are permitted in the polling place, as long as they remain outside the enclosed space.
Each watcher receives a certificate from the county board of elections, stating his name and the name of the candidate, party or political body he represents and is required to show the certificate upon request.312 Watchers may keep a list of voters and shall be entitled to challenge any prospective voter and to require proof of his or her qualifications to vote.313 The judge of elections must permit watchers to inspect (but not mark) the voting check list and either of the numbered lists of voters maintained by the county board.314
Pennsylvania also has a category of people allowed at the polls in an official capacity called “overseers of election” who supervise the proceedings of election officers, as well as poll watchers.315 Overseers of the election are appointed, following a petition of five or more registered electors of any election district, or by the court of common pleas of the proper county.316 That court is authorized to appoint two “judicious, sober and intelligent electors” of the district belonging to different political parties to supervise the proceedings of election officers. These overseers must be qualified to serve on election boards and must be sworn or affirmed by the judge of election.317 Overseers have the right to be present with the election officers during the entire time the election is held and to observe the votes counted and returns made out and signed by the election officers. Overseers may keep a list of voters.318 Overseers may also challenge any person attempting to vote, examine the voter’s papers, and ask the voter and the voter’s witnesses, under oath, about his or her right to vote in that election, and they are responsible for signing election returns.319 Whenever the members of an election board differ in opinion, the overseers may decide the question if they are in agreement.320 Election officers are required to provide overseers with “every convenience and facility for the discharge of their duties.”321
It is a problematic feature of Pennsylvania’s law, that watchers and overseers can challenge voters and request proof of eligibility. Giving the watcher the discretion to initiate challenges on the basis of a voter list poses a large risk of discriminatory challenges. Particularly in light of Pennsylvania’s newly passed Voter ID law, the power to examine a voter’s papers and otherwise interrogate voters gives watchers and overseers a lot of power in an interaction with a voter, which could prove troublesome.
Texas law does not allow a person to challenge a person’s registration or ability to vote at a polling place on Election Day.322
In Texas, poll watchers can be appointed to observe the conduct of election.323 To be eligible to serve as a watcher, a person must be a qualified voter of the county and political subdivision in which he or she will serve in a statewide election.324 Candidates, chairs of political parties, or, in the case of a write-in candidate, a group of registered voters may appoint two watchers for each voting location.325 The appointment must be in writing, and the appointing officials or voters must issue a certificate of appointment to the appointee and obtain an affidavit stating that the appointee will not have possession of a device capable of recording images or sound or that the appointee will disable or deactivate the device while serving as a watcher.326 This provision is good. The watcher must deliver the certificate of appointment to the presiding judge at the polling place and must counter-sign it to verify that the watcher is the same person who signed the certificate.
A watcher is entitled to be near the election officers at the polls, and members of the counting team when votes are being counted, inspect the returns, and make written notes while on duty.327An election judge at a central counting station must allow watchers to perform the activities described in the Texas Election Code, but the judge also has the authority to limit excessive or disruptive activity.328
A watcher is entitled to observe any activities conducted at the location he or she is serving, except that the watcher may not be present at the voting station when a voter is preparing a ballot without assistance from an election officer.329 However, watchers are entitled to be present at the voting station when a voter is being assisted by an election officer and are entitled to examine the ballot before it is deposited in the ballot box to determine whether it is prepared in accordance with the voter’s wishes.330 This is very problematic. This inspection requirement endangers the secrecy of a voter’s ballot.
While on duty, a watcher may not converse with an election officer regarding the election, except to call attention to an irregularity or violation of law, nor may they converse with voters or communicate in any manner with a voter regarding the election.331 It is protective of voting rights to prohibit voter communication by the poll watchers. Of course, for this provision to be effective, enforcement is critical. As noted, troubling allegations about poll watcher behavior in Harris County, Texas makes this obvious.332
A watcher may bring any occurrence that the watcher believes to be an irregularity or violation of law to the attention of an election officer.333 The watcher may discuss the matter with the officer, and the officer may refer the watcher to the presiding officer at any point in the discussion.334 In that case, the watcher may no longer discuss the occurrence with the subordinate officer unless the presiding officer invites the discussion.335 It is a Class A misdemeanor offense for an official to knowingly prevent an authorized watcher from observing an activity the watcher is entitled to observe.336 And it is a third-degree felony for any person in a polling place for any purpose other than voting to knowingly communicate any information obtained at the polling place about how a voter has voted to a third person.337 It is also illegal for poll workers or watchers to reveal any information about the results or the names of who has and has not voted at any time before the polls have closed.338
In Virginia, any qualified voter may challenge another voter at the polls on Election Day, which leaves the voters of Virginia at the mercy of anyone who may want to show up at the polls and be disruptive. However, at least any challenge must be in writing. The challenger must fill out a form, subject to penalties, stating that the challenged voter is not a citizen, a resident, of age, has already voted elsewhere, is disqualified by the state (e.g. due to a felony conviction), or is not who she represents herself to be.343 The challenged voter can sign a statement that she is eligible and may then vote a regular ballot.344 However, if the challenged voter refuses to sign the statement, he or she won’t be able to vote even using a provisional ballot.345 The Virginia legislature improved its law in 2007 by requiring any Election Day challenges to be on a written form. This is protective of voting rights as it creates a measure of accountability for someone making a challenge. However, Virginia should improve its laws further by requiring an stronger evidentiary basis for a challenge.
Election officials must permit at least one authorized representative for each political party or candidate in the room in which the election is being conducted at all times. Election officials have the discretion to permit as many as three representatives of each political party or independent candidate to remain in the room in which the election is being conducted.346 Authorized representatives must be qualified Virginia voters. Each authorized representative must present to the officers of election a written statement (or copy), signed by the party chairman or candidate, designating him as the party’s or candidate’s representative.347 Authorized representatives are allowed to use wireless communications devices, but they are not permitted to use the camera or video function on those devices.348 The officers of election may prohibit the use of cellular telephones or other handheld wireless communications devices if such use will unlawfully impede, influence, or intimidate voters.349
Authorized representatives must be allowed, whether in a regular polling place or central absentee voter precinct, to be close enough to the voter check-in table to be able to hear and see what is occurring.350 However, such observation shall not violate the secrecy of the ballot protected by the Virginia state constitution.351 Thus, they may move about the polling place to observe the election so long as they do not “hinder or delay a qualified voter or the officers of election, provide or exhibit campaign materials, attempt to influence a person voting, or otherwise impede the orderly conduct of the election.”352 Officers of election have the authority to remove any representative who does not adhere to the applicable guidelines.353 It is good that Virginia has a statutory basis for removing representatives that are disturbing the orderly conduct of elections.
Recommendations for Addressing Election Day Challenges and Poll Watchers
By allowing individuals to challenge voters’ eligibility to vote at the polls on Election Day, states run the risk that challenges will be used as a suppressive tactic for partisan gamesmanship. Challenges have been deployed against specific populations, often communities of color, in a way that is truly un-American and hearkens back to some of our country’s darkest days. Moreover, when voters face challenges at the polls, it can slow down the process for everyone else at the polling place.
Although some states’ laws are better than others, many are too vague and unclear and make it too easy for baseless challenges which throw up barriers to the voting rights of eligible, fully qualified registered voters. In order properly to protect voters’ rights to be able to cast their vote free of inappropriate challenges, rules governing the challenge process should be very clear and procedural safeguards should be in place.
As a general recommendation, challenges should not be allowed on Election Day. If they are, then ideally, only elections officials should have the authority to challenge a voter’s eligibility. Any challenge should be in writing and include the basis for the challenge and the facts supporting the challenge. States should also require some documentary evidence supporting the challenge as well. At minimum, there should be a standard requiring the challenger to have personal knowledge of the facts upon which the challenge is being made. Properly implemented, this requirement would prevent wholesale voter challenges based on speculation or possibly incorrect lists. A challenger should have to sign an oath under penalty of perjury, which will deter frivolous or ill-intentioned efforts. The grounds for challenge should be limited to citizenship, residency, identity, and age. There should be a penalty for filing a frivolous challenge.
Procedurally, the burden of proof must be on the challenger to show by clear and convincing evidence that the person challenged is ineligible to vote. The benefit of the doubt must go to the duly registered voter. This is very important – it should be the person doing the challenging who must prove that the voter is ineligible, not the other way around. The challenged voter should be able to vote a regular ballot if she answers the poll workers questions regarding eligibility or signs an affidavit affirming her eligibility. Returned mail should not be considered prima facie evidence to sustain a challenge. Provisional ballots should not be deemed an adequate substitute for casting a regular ballot if a challenge is not supported by personal knowledge, evidence, and a process that provides full protection to duly registered voters.
States should adopt laws that protect voters from inappropriate behavior by poll watchers. Poll watchers should be prohibited from communicating with voters. They should not be allowed to videotape or photograph voters. The privacy of voters should be protected by prohibiting poll watchers from watching voters vote. Under no circumstance should a poll watcher be able to observe a voter’s ballot. Poll watchers should not impede the voting process or interfere or communicate with or observe any voter casting a ballot. Because rules around poll watchers do not afford enough protections against inappropriate behavior, only eligible voters in the same precinct should be able to serve as poll watchers in that district.
Whether individuals are designated as challengers, poll watchers, or poll observers, elections officials should have statutory authority to eject anyone interfering with the orderly conduct of elections.
State Laws Addressing Voter Intimidation, Inside and Outside the Polls
This section focuses on activities that occur in the areas surrounding polling places on Election Day and broader laws concerning voter intimidation. Over the past few years, there has been concern about a number of groups who send volunteers to the polls to challenge the eligibility of voters under the guise of preventing electoral fraud who have no official status but simply appear outside polling sites.
Many of the states that we surveyed for this report have laws on the books prohibiting voter intimidation. As referenced in the introduction, the Voting Rights Act bars intimidation in the voting process in any state. Law enforcement can and should apply these statutes to behavior at the polling places that has the effect of intimidating voters about their eligibility to vote, including outside of polling locations. There is still room for legislators in these states to better protect voters from intimidation tactics by passing stronger legislation and increasing the penalties for those engaging in voter intimidation. However, as a starting point, the laws discussed below should be used if confrontations around poll site locations, such as those conducted by True the Vote in Harris County in 2010, occur again.
Colorado has voter intimidation statutes, but the laws are written narrowly and ambiguously. Colorado law contains a voter intimidation statute that only explicitly references voter intimidation in the title, as opposed to the text, of the statute.354 Colorado law makes it a misdemeanor “for any person directly or indirectly . . . to impede, prevent, or otherwise interfere with the free exercise of the elective franchise.”355 It is also unlawful for any person to attempt to induce any voter to show how he marked his ballot.356
Florida law has two statutes that directly address voter intimidation. First, Florida law makes it unlawful for any person, acting under color of law or otherwise, to “intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce any other person for the purpose of interfering with the right of such other person to vote or not to vote as that person may choose.357 Second, Florida’s “Voter Protection Act” makes it unlawful for any person to “directly or indirectly use or threaten to use intimidation or any tactic of coercion or intimidation to induce or compel an individual to vote or refrain from voting, vote or refrain from voting for any particular individual or ballot measure, refrain from registering to vote, or refrain from acting as a legally authorized election official or poll watcher.”358 Florida law also includes some important protections for voters at the polling place itself. It specifically prohibits individuals – including groups or organizations – from “solicit[ing]” voters within 100 feet of the entrance to a polling place or early voting site.359 Soliciting is defined to include “seeking or attempting to seek any vote, fact, opinion, or contribution,” and is therefore broader than a prohibition on electioneering. It would also appear to prohibit the harassing conduct experienced in recent elections, such as hovering over voters.
A number of surveyed states do not have laws that explicitly address voter intimidation, although these states have broad voting laws that might be sufficient to cover such practices. Missouri, for example, prohibits using or threatening to use “force, violence or restraint . . . in order to induce or compel such person to vote or refrain from voting at any election.”360 Missouri also prohibits “impeding or preventing, or attempting to impede or prevent, by abduction, duress or any fraudulent device or contrivance, the free exercise of the franchise of any voter.”361 While this statute addresses certain problematic Election Day activities, the statute is written in a way that makes its exact scope unclear. For example, the statute does not explain what constitutes a “fraudulent device or contrivance.” Missouri law also prohibits a number of other specific election related offenses, such as tampering with a voter’s ballot, providing inducements to voters, creating a breach of the peace, preventing one’s employees from voting, or otherwise interfering or attempting to interfere with any voter inside a polling place.362
Nevada law prohibits the use or threat of use of “force, intimidation, coercion, violence, restrain or undue influence” in connection with any election.363 And as described above, it is unlawful for members of the general public to photograph or record people who are in the process of voting.364 It is a felony under Nevada law to interfere with the conduct of an election or otherwise remove, receive, or display any ballot that has been prepared by a voter before the polls are closed.365
New Hampshire law makes it unlawful to “use or threaten force, violence, or any tactic of coercion or intimidation to knowingly induce or compel any other person to vote or refrain from voting, vote or refrain from voting for any particular candidate or ballot measure, or refrain from registering to vote.”366 New Hampshire also makes it a misdemeanor for individuals to knowingly interfere or attempt to interfere with a voter in the space within the guardrail. This prohibition includes any effort to induce a voter to show how he marks or has marked his ballot before he or she has voted.367
North Carolina law is strong. First, it makes it illegal for any person to interfere with or attempt to interfere with any voter when inside the voting enclosure or when marking his ballots.368 One possible shortcoming with this law is that it relies on narrow definitions of “voting place” and “voting enclosure.”369 North Carolina law does, however, specify that each county board of elections must specify a “buffer zone” around the polling place where it is prohibited to hinder or harass voters and where no electioneering activities may occur.370 The buffer zone may not be more than 50 feet or less than 25 feet from the entrance of the polling place.371 This is a commendable statute and one that other states should consider adopting. Further, North Carolina requires the chief judge and judges of election to “enforce peace and good order in and about the place of registration and voting,” including keeping “open and unobstructed the place at which voters or persons seeking to register or vote have access to the place of registration and voting.”372 North Carolina officials interpret “in and about” very broadly.373 These officials are charged with “prevent[ing] and stop[ping] improper practices and attempts to obstruct, intimidate, or interfere with any person in registering or voting.”374
Ohio law makes it illegal for any person to “attempt by intimidation, coercion, or other unlawful means to induce such delegate or elector to register or refrain from registering or to vote or refrain from voting at a primary, convention, or election for a particular person, question, or issue.”378 It is also prohibited under Ohio law to remove or deface property that relates to the conducting of an election from a polling place, and it is illegal to intimidate an election officer or otherwise interfere with the conduct of an election.379 Ohio law is also explicit that no person may “loiter” or “congregate” “within the area between the polling place and the small flags” that officials place 100 feet from the polling place.380 Finally, in Ohio it is illegal to “hinder or delay an elector in reaching or leaving” the polling place.”381
Pennsylvania law prohibits any manner of intimidation or coercion in order to induce or compel persons to vote or refrain from voting at any election.382 Pennsylvania’s anti-intimidation statute specifically prohibits restraining, threatening, or using any force that interferes with any person’s efforts to cast a ballot.383 The law also makes it illegal to use any fraudulent device that interferes with voters or induces a voter to give his or her vote for or against any particular person at any election.384 Any individual or corporation, whether for profit or not for profit, who violates these provisions faces a fine of up to $5000 and up to two years of imprisonment.385
Texas law prohibits a person from indicating to a voter in a polling place “by word, sign, or gesture how the person desires the voter to vote or not vote.”386 It is a misdemeanor in Texas to loiter or electioneer for or against any candidate, measure, or political party during the voting period within 100 of an outside door.387 It is also a misdemeanor for a person not engaged in activities specifically permitted by the Election Code to be in the polling place “from the time the presiding judge arrives there on Election Day to make the preliminary arrangements until the precinct returns have been certified and the election records have been assembled for distribution following the election.”388
Virginia makes it a crime for any person (i) to loiter or congregate within 40 feet of any entrance of any polling place; (ii) within such distance to give, tender, or exhibit any ballot, ticket, or other campaign material to any person or to solicit or in any manner attempt to influence any person in casting his vote; or (iii) to hinder or delay a qualified voter in entering or leaving a polling place.389 Virginia law further prohibits attempts to influence a person’s vote by “threats, bribery, or other means in violation of the election laws.”390 It is a misdemeanor for any person to hinder or delay a qualified voter or election officer, to give a ballot, ticket, or other campaign material to any person, to solicit or influence any person in casting his vote, or otherwise impede the orderly conduct of the election. 391
Recommendations Related to State Voter Intimidation Laws
Many state laws discussed above are clearly applicable to a wide range of intimidation tactics, including “True the Vote”-like tactics of “hovering” around voters and disrupting voting lines snaking around outside of polling places.392 There are, however, a number of things that can be done to provide even more protection from harassment masquerading as citizen law enforcement. We recommend that legislators take steps to provide more clarity with regard to rules relating to voter intimidation outside of the polling place. Many of the surveyed laws are broadly drafted, rendering their application to certain behaviors ambiguous.
We might consider analogizing these practices to electioneering. Electioneering generally involves handing out campaign materials, displaying signs, and otherwise advocating for the support or defeat of a candidate by using the candidate’s name. All ten states surveyed for this report have laws prohibiting electioneering within specific distances of polling places on Election Day because the states believe that some solicitation-free zones are necessary to protect voters from confusion and undue influence and to preserve the integrity and dignity of the election process.393 These rules are consistently upheld by the courts, including when the Supreme Court upheld a Tennessee electioneering law that prohibited electioneering within one hundred feet of a polling place.394
Another analogy to consider are the laws that restrict protests within a certain area surrounding medical facilities that provide abortions, in order to protect doctors and patients from intimidation and harassment by protesters.395 The Supreme Court recognized the government’s interest in protecting the “privacy interest in avoiding unwanted communication” and the right of individuals “to be let alone.”396 The Court reasoned that “the First Amendment does not demand that patients at a medical facility undertake Herculean efforts to escape the cacophony of political protests.”397 We might think about polling places as a similar harassment free zone to guard against voter intimidation and harassment at the polls. Specifically, voter intimidation laws could create a protected zone around polling places in which non-official inquiries into or challenges of a voter’s qualifications or ability to vote would be prohibited – just as electioneering is prohibited within certain distances of polling places – in order to ensure the integrity of the election.
Statutes that provide zones of protection would help address situations where voters are asked by people other than election officials whether they have valid identification or where voters are told that voters with outstanding traffic tickets could be arrested if they try to vote. Intimidating and disruptive behavior should be curtailed by laws that prohibit people from impeding the orderly conduct of the election within these protected areas.
The state laws analyzed in this report vary in the protections they afford voters. In too many states, voters are vulnerable to removal from the rolls or not having their ballots counted because challengers can base their charges on unreliable data. Too many jurisdictions fail to provide challenged voters with the full protections they should be afforded, such as a right to a hearing and a presumption of compliance with the laws governing qualifications.
Jurisdictions still have time to implement policies and procedures that will more adequately protect voters during this upcoming election without the need for legislation, such as the directive issued by Ohio’s Secretary of State that specifically prohibits justifying a voter challenge on returned mail alone.398 Another critical step states can take between now and the elections is to make sure their poll workers and elections officials are well-versed in their procedures and effectively trained to protect voters from wrongful challenges and intimidation. State leaders and advocates should work to strengthen their laws in upcoming legislative sessions as well.
Federal legislation has been introduced to address standards for voter challenges and to guard against insidious voter caging practices. The Voter Empowerment Act would, among other things, prohibit voter caging and improper challenges.399 It would protect eligible voters from being denied the right to register or vote based on the fact that mail was returned as undeliverable.400 The bill would also require that any voter challenge be backed up by independent evidence, and if someone other than an election official challenges a registered voter’s right to vote their challenge must be made on the basis of personal knowledge.
The Department of Justice should engage in vigorous enforcement of the Voting Rights Act and other protections against discrimination and intimidation. The Department of Justice should monitor developments leading up to the election and at the polls on Election Day and stand ready to step in to protect voters from intimidation.
We strongly encourage election officials and state law enforcement to be aware of possible voter intimidation activity at the polls and aggressively enforce anti-intimidation laws to ensure all eligible voters can vote without interference. We must all remain vigilant and allow zero tolerance for bullying at the ballot box.