Ballot Security and Voter Suppression
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"Ballot security" is an umbrella term for a variety of practices that are carried out by political operatives and private groups with the stated goal of preventing voter fraud. Far too often, however, ballot security initiatives have the effect of suppressing eligible votes, either inadvertently or through outright interference with voting rights.
There is nothing intrinsically wrong with investigating and preventing voter fraud, despite the fact study after study shows that actual voter fraud is extraordinarily rare.[1] But democracy suffers when anti-fraud initiatives block or create unnecessary hurdles for eligible voters; when they target voters based on race, ethnicity, or other impermissible characteristics; when they cause voter intimidation and confusion; and when they disrupt the voting process.
Unfortunately, historically and in recent elections, "ballot security" operations have too often had these effects. One federal court recently found that ballot security operations planned or conducted in recent years have largely threatened legitimate voters.[2] As the court found, not only have such initiatives often targeted eligible voters for disenfranchisement, but they also disrupt polling places, create long lines, and often cause voters to feel intimidated.[3] These effects are disproportionately felt in areas with large concentrations of minority or low-income voters, where such operations have typically been directed.
This election season, there has been a marked increase in efforts to organize “ballot security” initiatives and otherwise to mobilize activists to police against voter fraud. Political groups and activists across the country have been pouring substantial resources into such programs, and are encouraging and training their members and private citizens to serve as voter challengers or poll watchers and to take steps to deter or prevent voter fraud. This is occurring to an extent we have not seen in years.[4] Based on past experience, there is a significant risk that ballot security operations will result in vote suppression and voter intimidation during the November 2010 elections, regardless of whether or not this is their intended result.
This paper addresses four types of conduct that often accompany ballot security initiatives:
- Voter challenges: formal challenges lodged by political operatives or private citizens to the eligibility of persons presenting themselves to vote, either at the polls or prior to Election Day;
- Voter caging: efforts to identify and disenfranchise improperly registered voters solely on the basis of an undeliverable mailing;
- Voter intimidation: conduct that intimidates or threatens voters into voting a certain way or refraining from voting; and
- Deceptive practices: the dissemination of misleading information regarding the time, place, or manner of an election.
Because this conduct has the potential to interfere with the lawful exercise of the franchise, it is important for everyone involved in the process to have a clear understanding as to what is permissible and what is not permissible conduct. Specifically, voters should be armed with the knowledge that federal and state law afford protections against ballot security efforts when they are discriminatory, intimidating, deceptive, or when they seek to disenfranchise voters on the basis of unreliable information. Those who participate in ballot security programs should take care to ensure that their initiatives do not encroach upon the rights of eligible voters and run afoul of state and federal laws.
Voters who experience or witness any of the discriminatory, intimidating, or deceptive conduct discussed below should immediately report the problem to election authorities and, when appropriate, to law enforcement authorities. Voters should also call 1-866-OUR-VOTE, a non-partisan voter protection hotline; trained volunteers will be able to provide assistance and take steps to ensure that you can exercise your right to vote. Voters should also report the offensive conduct to the Voting Section of the United States Department of Justice by calling (800) 253-3931.
[1] In fact, Americans are more likely to be struck by lightning than to commit voter fraud. justin levitt, the brennan center for justice, the truth about “voter fraud” 3, 23 (2007), available at http://www.brennancenter.org/page/-/d/download_file_38347.pdf (various studies of voter fraud in Missouri, New Jersey, and Wisconsin revealed voter fraud rates of 0.0003%, 0.0004%, and 0.0002%, respectively).
[2] Democratic Nat’l Comm. v. Republican Nat’l Comm., 671 F. Supp. 2d 575, 610–13 (D.N.J. 2009) (“DNC v. RNC”) (comparing the effects of voter fraud and ballot security initiatives on the integrity of modern elections, and concluding “the risks created by poorly-designed ballot security initiatives, undertaken with the ostensible purpose of safeguarding against fraud, are a greater threat to the electoral process than the in-person fraud they are meant to prevent”); id. at 612 (“it is all but certain that anti-fraud initiatives . . . will result in the disenfranchisement of many individuals whose eligibility is not in question.”).
[4] See generally “Ballot Security” Operations, Brennan Center for Justice (Oct. 10, 2010), http://www.brennancenter.org/content/resource/ballot_security_operations/.