Challengers Can Cause Headaches at the Polls

While legal skirmishes over voting rights continue to play out publicly, another battle is brewing behind the scenes — one that will be fought by private citizens rather than political parties or politicians.

August 31, 2012

Over the past two years, partisan lawmakers have turned one of our nation’s most sacred constitutional rights — the right to vote — into yet another pawn in their ongoing political battles. State legislators, spurred by electoral self-interest, have passed a wave of restrictive new voting laws that could hinder millions of citizens’ access to the voting booth. In recent months, this partisan wrangling has spilled out of the statehouse and into the courtroom, where judges are now deciding whether these new laws infringe upon the right to vote.

While these legal skirmishes continue to play out publicly, another voting rights battle is brewing behind the scenes — one that will be fought by private citizens rather than political parties or politicians. Independent groups in dozens of states are gearing up to recruit poll-watchers, remove voters from the rolls, and challenge voters at the polls. One such group, a Houston-based organization called True the Vote, has announced its plan to recruit 1 million poll-watchers nationally for the November election. Smaller groups have already challenged hundreds of voters in North Carolina and Maryland this summer and are poised to undertake similar efforts — particularly in swing states — in the coming weeks.

To do this, the groups will rely on antiquated state laws, known as “challenger laws,” that allow private citizens to contest the eligibility of individual voters, either on or before Election Day. Challenges are typically based on allegations that a particular voter lacks some requisite voting qualification, such as citizenship or precinct residency. Although these laws have been around for centuries, political operatives have relied on them with greater frequency in recent elections.

The growing use of these laws has exposed some of their shortcomings. Over the past decade, citizen challengers have disrupted elections by causing crowding and confusion inside the polls and by targeting specific groups — typically voters of color, university students, and voters with disabilities — for challenges. These problems stem primarily from the insufficient oversight in existing challenger laws and the lack of safeguards to prevent frivolous challenges.

Indeed, of the 39 states that currently allow private citizens to challenge voters inside the polls, only 15 require challengers to produce documentation to support their claims. Similarly, of the 28 states that allow challenges before Election Day, only eight require challengers to provide reliable evidence that the voter is ineligible. These anemic proof requirements open up the process to abuse by political operatives seeking to use challenges to suppress or intimidate voters.

Even when challengers do not seek to deliberately abuse the process in this way, however, their actions can nevertheless disrupt elections. Private citizens do not have the same resources or training as election officials and, as a result, often rely on false or inaccurate information to identify ineligible voters. In 2004, for instance, citizens in Washington and Georgia challenged dozens of voters, alleging that they might not be citizens because they had Hispanic surnames. Similarly, a North Carolina man used local courthouse records to challenge more than 500 Wake County voters on citizenship grounds earlier this year; state DMV officials later confirmed that more than 95 percent of the challenged voters were likely citizens, prompting the local elections board to dismiss most of the man’s claims. Incidents like these highlight the need for greater oversight of citizen challengers.

States can and should protect against frivolous challenges by requiring challengers to substantiate their allegations with reliable evidence. In addition, states should require that all challenges be filed before Election Day — rather than at the polls — to ensure that election officials have enough time to verify every challenge they receive. Allowing challengers inside the polls often causes delays, distracts election officials, and leads to crowding and confusion on Election Day — which is why Texas, Ohio, and Alabama have all recently banned citizen challenges at the polls.

By repealing their poll challenger laws, these states not only eliminated a major source of headaches for voters and election officials, they also dispensed with an archaic relic of 19th century democracy. Most states’ challenger laws are over a century old and predate many modern election reforms — including the secret ballot and electronic voter registration lists — that have effectively rendered poll challengers obsolete today. As more citizens seek to take advantage of these laws, state lawmakers and election officials should take the opportunity to protect voters by modernizing their challenger rules.