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Report

Voter Challengers

  • Nicolas Riley
Published: August 30, 2012

Since 2011, a wave of restrict­ive voting laws in state legis­latures across the coun­try has threatened access to the voting booth for millions of Amer­ic­ans. But little atten­tion has been given to the 46 states that have laws that allow private citizens to chal­lenge the eligib­il­ity of prospect­ive voters, either on or before Elec­tion Day. A new Bren­nan Center report, Voter Chal­lengers, exam­ines the laws that give rise to citizen-led chal­lenge efforts and the diffi­culties such efforts create for both voters and elec­tion offi­cials. It focuses on the short­com­ings of exist­ing voter chal­lenge rules, the histor­ical origins of these laws, the recent prob­lems chal­lengers have caused, and how lawmakers and elec­tion offi­cials have respon­ded to those prob­lems. The report, which is based on the Bren­nan Center’s extens­ive analysis of chal­lenger laws in all 50 states, concludes by propos­ing recom­mend­a­tions for future reform.

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Report Appendix: Chal­lenger Laws in Key States

Exec­ut­ive Summary

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Exec­ut­ive Summary

Forty-six states have laws that allow private citizens to chal­lenge the eligib­il­ity of prospect­ive voters, either on or before Elec­tion Day. Although these laws are more than a century old, they have drawn increased public scru­tiny in recent years as the number of citizen poll-watch­ers and chal­lengers in elec­tions contin­ues to grow. With the 2012 general elec­tion fast approach­ing, these “chal­lenger laws” will likely be in the spot­light once again.

Recent contro­ver­sies involving partisan and discrim­in­at­ory voter chal­lenge efforts have promp­ted many elec­tion offi­cials, state lawmakers, and even courts to reex­am­ine these anti­quated state laws. States have substan­tially cabined the role of chal­lengers over the past decade and, earlier this year, a federal appeals court upheld a 30 year-old consent decree barring the Repub­lican National Commit­tee from focus­ing its chal­lenge efforts in communit­ies of color.

Yet, even as courts and lawmakers have sought to curb parties’ chal­lenge efforts, inde­pend­ent groups of private citizens have pushed ahead with their own plans to chal­lenge voters in many states. In 2011, a Hous­ton-area organ­iz­a­tion called True The Vote announced its goal of recruit­ing one million people to serve as poll-watch­ers during the 2012 general elec­tion. The group has been support­ing local activ­ists’ efforts to chal­lenge voters in dozens of states over the past few months. In May, one of these local activ­ists chal­lenged over 500 voters in Wake County, North Caro­lina, most of whom were voters of color. Although local elec­tion offi­cials later dismissed almost all of these chal­lenges for insuf­fi­cient evid­ence, the incid­ent never­the­less high­lights the kinds of prob­lems that often occur when untrained private citizens seek to police access to the polls.

This report exam­ines the laws that give rise to these citizen-led chal­lenge efforts and the diffi­culties that those laws create for both voters and elec­tion offi­cials. It focuses on the short­com­ings of exist­ing voter chal­lenge rules, the histor­ical origins of these laws, the recent prob­lems chal­lengers have caused, and the ways that lawmakers and elec­tion offi­cials have respon­ded to those prob­lems. The report, which is based on the Bren­nan Center’s extens­ive analysis of chal­lenger laws in all 50 states, concludes by propos­ing recom­mend­a­tions for future reform.

KEY FIND­INGS:

  • Many states’ chal­lenger laws are suscept­ible to abuse. Twenty-four states allow private citizens to chal­lenge a voter at the polls without offer­ing any docu­ment­a­tion to show that the voter is actu­ally ineligible.  This leaves even lawful voters vulner­able to frivol­ous or discrim­in­at­ory chal­lenges. Illinois, for example, currently permits any legal voter to contest another voter’s qual­i­fic­a­tions at the polls but does not require the chal­lenger to offer any proof to substan­ti­ate his or her alleg­a­tions. The chal­lenged voter, in turn, must provide two forms of iden­ti­fic­a­tion (or a witness known to the elec­tion judges) to estab­lish her qual­i­fic­a­tions before she can vote. Chal­lengers can exploit these unequal evid­en­tiary burdens to intim­id­ate or delay voters on Elec­tion Day.
  • In recent years, chal­lengers have targeted voters of color, student voters, and voters with disab­il­it­ies. Over the past several elec­tion cycles, chal­lengers have stationed them­selves at polling places in predom­in­antly African-Amer­ican and Latino neigh­bor­hoods, on univer­sity campuses, and even near resid­en­tial mental health­care facil­it­ies to contest the eligib­il­ity of voters who live in these areas. These patterns reveal a heightened focus on chal­len­ging specific groups of new and vulner­able voters.
  • Chal­lenger laws were histor­ic­ally enacted and used to suppress newly enfran­chised groups, like African Amer­ic­ans and women. Many states origin­ally enacted chal­lenger laws to block minor­ity voters’ access to the polls. Virginia, for instance, passed its first chal­lenger law in the imme­di­ate wake of Recon­struc­tion along­side a host of other suppress­ive meas­ures, such as poll taxes and liter­acy tests, aimed at recently freed former slaves. Other states — like Flor­ida, Ohio, and Minnesota — simil­arly passed chal­lenger legis­la­tion during the nine­teenth century to suppress turnout in black communit­ies. Even in states where chal­lenger laws were not enacted with an obvi­ous discrim­in­at­ory purpose, polit­ical oper­at­ives still often used chal­lenges to discrim­in­ate against newly enfran­chised groups of voters. For example, during a special elec­tion in Lisle, NY, in 1918 — the first elec­tion after women won the right to vote in the state — every woman who attemp­ted to cast a ballot was chal­lenged at the polls. This history of discrim­in­at­ory voter chal­lenges casts doubt on the fraud-preven­tion argu­ments tradi­tion­ally used to justify these laws.
  • Since the 2000 elec­tion, lawmakers and elec­tion admin­is­trat­ors have been work­ing to rein in chal­lenger author­ity. Three states — Texas, Ohio, and Alabama — repealed laws enabling private citizens to chal­lenge voters at the polls. In addi­tion, more than half a dozen states have raised the evid­en­tiary burdens that private citizens must satisfy to initi­ate a chal­lenge. These and other recent meas­ures, which were passed largely as a response to specific prob­lems caused by overzeal­ous poll­watch­ers, reveal a clear trend toward narrow­ing private citizens’ abil­ity to chal­lenge voters.

POLICY RECOM­MEND­A­TIONS:

  • Private citizens should not be allowed to chal­lenge voters at the polls on Elec­tion Day. Chal­lenges should only be permit­ted before Elec­tion Day to ensure that elec­tion offi­cials have enough time to thor­oughly review every chal­lenge. This will also limit polling place disrup­tions and give voters a fair oppor­tun­ity to correct any errors in their regis­tra­tion.
  • Chal­lengers should be required to provide reli­able evid­ence to substan­ti­ate their claims. Anyone who has success­fully registered to vote is entitled to a presump­tion of eligib­il­ity. There­fore, the chal­lenger should bear the burden of prov­ing that the voter is ineligible and should be required to produce reli­able evid­ence to support that claim.
  • Voters should be shiel­ded from frivol­ous chal­lenges and given a mean­ing­ful oppor­tun­ity to respond to any legit­im­ate chal­lenges on or before Elec­tion Day.Elec­tion offi­cials should screen all chal­lenges to ensure that voters are not forced to respond to frivol­ous alleg­a­tions. Voters, in turn, should be given a fair oppor­tun­ity to respond to any non-frivol­ous chal­lenges on or before Elec­tion Day. In respond­ing to these chal­lenges, voters should have a chance to update any errors in their regis­tra­tion status.

In addi­tion to these reforms, the Bren­nan Center encour­ages states to take steps to modern­ize their voter regis­tra­tion systems. Voter regis­tra­tion modern­iz­a­tion provides a more perman­ent and cost-effect­ive way for states to improve the accur­acy of their voter rolls than citizen chal­lenges.