In May, The Atlanta-Journal Constitution reported that a man challenged the voter eligibility of 13,000 voters in Forsyth County, Georgia.
To reiterate: a single individual questioned the right to vote for around 8% of the registered voters in the county.
Luckily, the county’s election board quickly dismissed the challenge, which came just weeks before the 2022 primary election. But this isn’t an isolated incident, at least in Georgia. A right wing group called True the Vote generated a list of 364,000 voters to challenge in advance of the January 2021 Senate runoff elections.
While it’s undoubtedly concerning, the Forsyth County man was operating fully within his rights. In fact, almost every state has a law on the books outlining the opportunities to challenge a voter’s right to vote. In some states, that power is limited to elections officials or poll watchers, or requires some burden of evidence to initiate. In almost 30 other states, any private citizen can challenge the eligibility of other prospective voters, up to, and on, Election Day.
What does it mean for individuals to mount legal challenges against other voters?
To challenge a voter, an individual must have a suspicion that a registered voter is actually not qualified to vote. For example, challenges can be based on the belief that someone is not a U.S. citizen, not yet 18 years old or resides in a different county or state. Here lies the issue: wrongful challengers target certain individuals, largely those who are nonwhite, young or have a disability.
Challenges that take place before Election Day, such as the ones in Georgia, are sometimes based on the U.S. Postal Service’s National Change of Address (NCOA) database. However, there’s no way to tell from the NCOA alone if someone has moved permanently or has asked their mail to be forwarded for numerous other reasons. The NCOA often improperly captures students at an out-of-state university, members of the military, civilians deployed abroad or those who have simply moved elsewhere, but not necessarily out of the county or state.
NCOA challenges rely on a similar logic as another notoriously unreliable practice called voter caging. To conduct voter caging, partisan groups send mail to voters and if the mail is returned as undelivered, they challenge the eligibility of those voters on the basis that they do not live at their registered addresses. Voter caging ignores the fact that there are address typos in the voter rolls, that voters can have non traditional addresses (such as homeless voters) or that voters can simply move away for reasons unrelated to their eligibility.
“In light of the National Voter Registration Act of 1993 (NVRA), some of these laws are really outdated and unnecessary,” Julie Houk, Managing Counsel for Election Protection at Lawyers’ Committee for Civil Rights under Law, told Democracy Docket. “Most jurisdictions engage in some sorts of list maintenance… so there doesn’t appear to be a need for private individuals who don’t have the training or background or experience that election officials do, to conduct challenges to voters eligibility.”
An infamous 1986 quote from a Republican National Committee (RNC) leader showcases how this technique has been often used to suppress voters: “I know this race is really important to you. I would guess that this program will eliminate at least 60-80,000 folks from the rolls… If it’s a close race… which I’m assuming it is, this could keep the black vote down considerably.”
If a challenge is initiated before Election Day, however, there can be time for officials to reject or review the accusations, but numerous states allow these to take place on Election Day. A 2012 report by the Brennan Center for Justice chronicled why “polling places [are] a poor venue for deciding voter challenges.” Adding stress for both the voter and election officials, challengers physically present at the polls can create intimidation, confusion and delays.
“It creates not only a problem for the voters who have very little time to respond to those challenges, but for the election officials, who are now faced with having to adjudicate those challenges,” Houk added.
How do state statutes differ?
Oklahoma, Oregon, Texas and Washington are the four states that do not allow for voter challenges on Election Day. Otherwise, a handful of states limit challenge authority to election officials only (e.g. California and Ohio) or election officials and poll watchers (e.g. Arkansas and Rhode Island). Most expansively, some states permit any registered voter within that same town or county to challenge.
It’s understandable why baseless challenges are undesirable for all parties involved, but too many states do not require any specific evidentiary requirements to initiate a challenge. In certain states, simply “suspecting” someone is not qualified is sufficient.
In the past two decades, several states have revised their laws in the face of frivolous challenges that burden overworked election administrators. New Hampshire now requires the presentation of the “specific source of the information or personal knowledge.” Maine and Nevada added similar “personal knowledge” requirements. There’s also very few protections for the individuals who are challenged at the polls, though a few states impose penalties for indiscriminate challenges.
Voter challenges are rooted in a history of discrimination.
Many challenger laws were enacted well before the Civil War, serving to prevent in-person voter fraud (today, a nearly nonexistent phenomenon despite Republican insistence) before the advent of other modern election administration reforms. In smaller social networks, challenger laws provided an opportunity to raise concerns if you personally knew someone was an ineligible voter.
These laws served another antiquated purpose when voter eligibility was based on visible, physical characteristics (think Black men before the 15th Amendment or women before the 19th amendment). Then, after these rights were granted, voter challenges were weaponized against the newly enfranchised: In 1872, a group of white citizens in Wake County, North Carolina challenged 150 African American voters and in 1918, one man challenged every single woman who tried to cast a ballot in Lisle, New York.
In more recent years, the Republican Party has used these laws to launch mass challenges instead of individual ones (though, if the result removes individuals from the voter rolls, these mass challenges cannot take place within 90 days before a federal election under the NVRA). Here are a few examples of disruptive, discriminatory challenges in the last two decades:
- Before the 2004 election, the Republican Party announced its plan to place 3,500 individuals within polling places in Ohio to challenge the eligibility of voters in Democratic strongholds. The plan was to challenge tens of thousands of voters in Ohio and other swing states, disproportionately voters of color from urban counties. The effort was contested in court, and ultimately abandoned after nationwide backlash.
- Earlier that year, in a 2004 primary election in Bayou La Batre, Alabama, poll watchers challenged Southeast Asian American voters. The white incumbent, who was defeated by the first Asian American city council candidate, didn’t hide his prejudice: “We figured if they couldn’t speak good English, they possibly weren’t American citizens,” he told a local newspaper. About 50 voters, in a town of 3,000, were forced to fill out paper ballots instead and bring forward another registered voter to vouch for their eligibility.
- In 2008, the Montana Republican Party challenged 6,000 voters before Election Day based on the NCOA. Many of those 6,000 turned out to be students attending university out-of-state, and even members of the military.
- Houk described a 2015 lawsuit against the Board of Elections in Hancock County, Georgia where board members challenged and purged Black voters from the voter rolls. Most of these challenges were based upon pure speculation, and according to Houk, judgments on whether a house or trailer looked “habitable” or whether there were too many people living in a particular place. Law enforcement was even involved in delivering notifications that voters’ eligibility was being challenged.
The RNC’s dubious legacy of “ballot security” operations may take on new meaning in 2022.
During a 1981 New Jersey election, the RNC launched a “National Ballot Security Task Force.” The group engaged in voter caging, generating a list of 45,000 voters to challenge based on unreturned mail and outdated voter registration rolls. What’s more, as part of this task force, the RNC hired off-duty police officers to patrol specific polling places, all with the combined goal of suppressing Black and Latino voters and favorably changing the results of the election.
The Democratic National Committee (DNC) sued and the RNC entered into a consent decree, which required the party to submit “ballot security” plans to a federal court to review before implementation. The consent agreement was renewed several times as Republicans repeatedly violated the order, but it was allowed to expire in December 2017.
In the years since then, and in the upcoming 2022 midterm elections, the opportunities for abuse are widening. In the 2020 election, the campaigns of both Joe Biden and Donald Trump recruited thousands of volunteers to serve as poll watchers. While poll watchers play a legitimate role in our democracy and are governed by important guidelines to prevent abuse, Trump’s aggressive call for supporters to “go into the polls and watch very carefully” created serious concerns in 2020. In the time since then, Republican state legislatures passed laws further empowering partisan poll watchers and removing protective guidelines.
The 2022 election poses new threats: the GOP has made weeding out “voter fraud” a fundamental pillar to their party, escalated a scaremongering rhetoric around noncitizens illegally voting and is spending millions on recruiting poll watchers. According to The Washington Post, the RNC has already signed up more than 10,000 poll watchers nationwide.
The recruitment messaging this year is also different. “For too long the power has been with the local election administrators,” said RNC’s director of election integrity Josh Findlay. “Hopefully we don’t have to wait until you know the vote has already been cast or whatever it is to sue after the election is already over to try to fix things. We want to be able to catch things in real time.”