Voter Fraud Vigilantes: The Questionable Legality of Voter Challenges

By Anthony Balady September 24, 2010

On Monday, we blogged about the Tea Party’s alleged voter suppression efforts in Wisconsin. The Tea Party’s plan reportedly relies on voter caging, in which mailers are sent to registered voters, asking them to confirm their addresses. Any mail that comes back as returned or undeliverable will be used as grounds to justify an in-person challenge on Election Day. Unfortunately, hundreds of thousands of voters across the nation, usually minorities, have been targeted by similar voter caging efforts.

How can the Tea Party and other organizations get away with voter caging? Both the National Voter Registration Act and the Voter Rights Act make challenging a voter based solely on returned mail illegal. To maintain a pretense of legality, groups that engage in voter caging rely on outdated state laws that allow any voter to challenge the voting rights of another voter. In Wisconsin, for example, any eligible voter may challenge the right of any other person to vote if the challenger knows or suspects that the challenged voter is not qualified. North Carolina allows any registered voter to challenge any other registered voter in their precinct on Election Day, and these challenges do not have to be recorded. Louisiana permits any registered voter in the state to challenge another voter, and challenged voter’s right to cast a ballot is left in the hands of the election commissioners in the precinct.

These laws, many of which date from the Jim Crow era, have the obvious potential to be abused. The current controversy in Wisconsin demonstrates how a determined organization, acting under the color of law, can effectively suppress the voting rights of thousands. If nothing else, the clear potential for abuse should give state legislatures plenty of incentive to engage in careful redrafting of these laws.

Even presupposing that the people making voter challenges are acting with the best intentions, these laws essentially permit vigilante enforcement of voter fraud laws. This should give pause to anybody interested in preserving the integrity of the voting process. A citizen’s ability to vote–the most basic aspect of any democracy–should not be challenged based on another voter’s mere “suspicion” of fraud. Even if all unfounded challenges are overruled by election officials at the precinct, the challenged voter is still being intimidated at the polls. Voter intimidation should never be tolerated, let alone sanctioned by poorly drafted and outdated voter challenge laws.

Anthony Balady is a legal intern at Project Vote.