Swing-State Scare Tactics

We’ve heard a lot about debates over strict voter-ID legislation this cycle, but there’s an even more pressing problem in some parts of the country: intimidation at the ballot box. In addition to pushing for these voter-ID laws—which require citizens to show a government-issued ID before casting their ballot—conservative groups like True the Vote have alleged widespread voter fraud, recruiting volunteers to act as poll watchers and look for any signs of illegality from voters. True the Vote has also pushed volunteers to comb through the voter rolls for signs of fraud. It's left many worried about the likelihood of scaring voters away from the polls.

It all begs the question: What laws are on the books to protect the right to vote?

A new report from Common Cause and Demos (disclosure: Demos is the Prospect's publishing partner) takes a thorough look at voter-protection measures in ten states—measures meant to facilitate voting instead of erecting more hurdles in the name of "security." The most frequent threat to the right to vote comes in the form of vote "challenges," instances in which the legitimacy of a particular vote is called into question. These challenges typically take one of two forms: Poll watchers either question the legitimacy of a vote on Election Day, or partisan volunteers conduct amateur research on voter registrations and seek to clean the voter rolls before votes are cast. Many of the states also limit poll watchers' behavior and limit or prohibit challenges on Election Day—perhaps the most important time since no votes can be cast afterward. But in half of the ten states the report examines, voters have few protections against getting kicked off the rolls unfairly before the election; there are also few penalties for those who bring frivolous cases. In many states, the burden falls on the voter to defend herself when someone challenges her registration (in Virginia, a voter’s registration is canceled if the voter misses a single hearing after the registration is challenged). 

The report doesn't mince words about the importance of voter protection:

In the end, unfounded challenges and acts of harassment at the polls by politically motivated organizations threaten to disenfranchise eligible Americans. Such activities on a wide scale can impact election results and damage the integrity of our democracy and election institutions. Election administrators and law enforcement officials should carefully monitor such activities and bring enforcement actions when needed to protect against abuses.

This year, True the Vote (TTV)—which in the past has targeted nonwhite polling places and pushed for states to pass strict voter-ID laws and scrub people from the polls, often based on, at best, questionable research—has announced it will be active across the country. The report has a set of recommendations for protecting voters against challenges to their registration or ballot, arguing in these cases the burden must fall on the person making the challenge rather than the voter. That means the challenger would need “first-hand personal knowledge” in order to bring a challenge, and they’d also need to put the issue in writing. The report suggests penalties for those cases deemed frivolous and argues that challenges to voter registrations should not be allowed within 60 days of an election. Such suggestions would limit TTV’s current efforts, since, along with Judicial Watch, the group is bringing suits against states for not doing enough to cull voter rolls. There's a lot of room for improvement; half of the ten states the report examines received an "unsatisfactory rating" in this area. However, in most cases, these are issues that will have to be battled next year, when state legislatures go back into session.

But when it comes to curbing poll-watching activity and governing challenges on Election Day (when the stakes are highest), most of the states examined offered voters a significant level of security. Many of the other states limit who can challenge voters on the day of the election, or require such complaints to be in writing with significant safety nets for the voter in question, like allowing them to sign an affidavit and then vote normally. (A few states received a “mixed” rating for not including all the recommendations.) Only two states receive unsatisfactory ratings for Election Day challenges: Pennsylvania and Florida. In Pennsylvania, those voters challenged must produce witnesses or documents, while in Florida anyone challenged must vote provisionally. Similarly, only two of the states investigated received unsatisfactory ratings when it comes to regulating the behavior of poll watchers and poll observers. Almost all the states (including those with bad ratings) don't allow poll watchers to interfere with the voting process, and limit where the poll watchers can stand. However, many of the laws vary quite a bit state to state; for instance, some ban all communication between poll watchers and voters, and others offer strict procedures for those wishing to challenge a voter. Some include bans on communicating with voters or photographing the polling place. Texas and Pennsylvania were the two states deemed unsatisfactory: Texas for allowing poll watchers to inspect ballots if a voter receives assistance and Pennsylvania for allowing watchers to request proof of eligibility.

While the report's suggestions offer policy advice for when state lawmakers go into legislative sessions next year, where the report ends, much does not dig into the best ways to train elections officials on the laws or decrease controversies at the polls. 

For smooth elections, most elections officials focus on preventative measures that keep conflicts at a minimum to begin with, as well as a plan for mediating disputes. Officials in Harris County, where True the Vote began its crusade, recognized such a need. By the summer of 2010, True the Vote had started gearing up to send hundreds of poll watchers around Houston, and the Harris County Attorney’s office decided to create “strike teams” made up of investigators, peace officers from the county attorney’s office, and attorneys. The attorney’s office worked to foster relations with all sides so that they could be more effective in settling disputes. The county attorney held a conference call with all election judges shortly before the polls opened to go through the specifics of what would and would not be allowed in polling places.

On Election Day, when problems arose at any polling place, teams were dispatched immediately. “I think it alleviated a lot of problems,” said Doug Ray, a senior assistant county attorney who helped organize the regime. He said the plan was “basically try to work out the disagreements while it’s happening.” Many expected huge fights and worried about violence on Election Day; in the end, while there were a number of complaints from poll watchers and voters, the strategy seemed to avert any major incidents. But despite their success, Ray says no other states have called his office for advice in dealing with the controversial group’s poll watchers.

In the end, preventing a lot of the "bullying" and voter intimidation that the report details falls to local election boards. At the state and local level, officials must ensure that that poll workers know the rules and enforce them consistently and have a strong plan to deal with disputes quickly and fairly. Without those safeguards in place, even the best laws, while crucial, might not be enough.

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