an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The New York Times posted an editorial on voting harassment on Friday, describing these troubling scenarios:
In an ostensible hunt for voter fraud, a Tea Party group, True the Vote, descends on a largely minority precinct and combs the registration records for the slightest misspelling or address error. It uses this information to challenge voters at the polls, and though almost every challenge is baseless, the arguments and delays frustrate those in line and reduce turnout. . . .
In 2009 and 2010, for example, the group focused on the Houston Congressional district represented by Sheila Jackson Lee, a black Democrat. After poring over the records for five months, True the Vote came up with a list of 500 names it considered suspicious and challenged them with election authorities. Officials put these voters on “suspense,” requiring additional proof of address, but in most cases voters had simply changed addresses. That didn’t stop the group from sending dozens of white “poll watchers” to precincts in the district during the 2010 elections, deliberately creating friction with black voters.
The group also "used inaccurate lists to slow down student voting" in Wisconsin. This is part of a much larger strategy, as Elizabeth Drew explains:
[T]he current voting rights issue is . . . a coordinated attempt by a political party to fix the result of a presidential election by restricting the opportunities of members of the opposition party’s constituency—most notably blacks—to exercise a Constitutional right. . . . In the aftermath of the 2004 election, which was characterized in Ohio by lines at voting places in black districts so long as to discourage voters, Ohio Democratic officials made voting times more flexible; after the Republicans took over the state they set out to reverse that.
Iowa, Florida, and Colorado tried to purge the voting rolls of suspected unqualified voters, but their lists turned out to be wildly inaccurate. Florida officials compiled a list of 180,000 people whose qualifications were questioned, but after voting registrars checked (some protesting the unfairness of the purge) only 207, or .0002 percent of the state’s registered voters, were found to be unqualified to vote.
When I mentioned these concerns to University of Toronto Law Professor Simon Stern, he noted the following by email:
The editorial describes a scenario that appears to fall under 42 USC § 1985(3). As the editorial explains, True the Vote identifies “largely minority precinct[s] and combs the registration records for the slightest misspelling or address error.” These details are used “to challenge voters at the polls” so as to “frustrate those in line and reduce turnout.” Section 1985(3) addresses conspiracies that use “force, intimidation, or threat” to attempt to stop “any citizen who is lawfully entitled to vote.”
A series of confrontations at the polls, choreographed to take place in minority precincts, and ostensibly based on the voter’s eligibility, fits within the core of this provision (as the editorial explains, one of the group’s leaders hopes that their “poll watchers” will make the targeted voters feel as if they are “driving and seeing the police following you”). Where the group, rather than acting directly, seeks to have election officials challenge these voters, this conduct falls within another provision in section 1985(3), which prohibits conspiracies aimed at “depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws.” Both forms of voter intimidation are aimed at creating the kind of irreparable injury that justifies a preliminary injunction.