Ballot Security and Voter Suppression

August 29, 2012

“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.

An updated Brennan Center report, Ballot Security and Voter Suppression: What It Is and What the Law Says, addresses four types of conduct that often accompany ballot security initiatives, voter challenges, voter caging, voter intimidation and deceptive practices.

Over the past year, political groups and activist organizations across the country have been pouring substantial resources into anti-voter fraud programs and encouraging their members to serve as voter challengers and poll watchers this November. Coupled with the spate of harsh new voting restrictions that many states have enacted over the past two years, there is a significant risk that ballot security operations will result in vote suppression and voter intimidation during the 2012 elections.

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Introduction

“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, ballot security operations have too often had these effects, both historically and in recent elections. A federal appeals court recently found that ballot security operations planned or conducted in recent years have by and large threatened legitimate voters.2 The court’s opinion indicates that not only do such initiatives often target eligible voters for disenfranchisement, but they also tend to disrupt polling places, create long lines, and cause voters to feel intimidated.3 Moreover, these effects are often felt disproportionately in areas with large concentrations of minority or low-income voters, where such operations have typically been directed.

While little came of these efforts in the 2010 election, there is reason to believe that similar efforts will pose a renewed threat to voters in 2012. Over the past year, political groups and activist organizations across the country have been pouring substantial resources into anti-voter fraud programs and encouraging their members to serve as voter challengers and poll watchers next year.5 For example, in 2011, a Houston-area organization called “True The Vote” announced its plan to recruit and train one million volunteers nationally to monitor the polls during the 2012 general election.6 Although the group’s own poll-watching efforts in Harris County, Texas, drew scrutiny in 2010 after witnesses complained that the group’s members were harassing voters in communities of color,7 the organization has nevertheless moved forward with plans to support local activists’ poll-watching and voter challenge efforts in other states in 2012. This summer, activists in Maryland who had been inspired by True The Vote’s efforts, challenged hundreds of voters in Baltimore and Prince George’s counties and announced their plans to “fan out to the polls” this November.

With the spate of harsh new voting restrictions that many states have enacted over the past two years, groups like these have gained a broader platform for promoting their views.10 These developments suggest that there is a significant risk that ballot security operations will result in vote suppression and voter intimidation during the November 2012 elections, regardless of whether or not this is their intended result.

Accordingly, this paper, which was originally released just before the 2010 election, has been updated for use in 2012. It 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 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 that are discriminatory, intimidating, deceptive, or that 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 1-800-253-3931.


Ballot Security and Voter Suppression