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.
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.
- 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.
- 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.