Thanks to commenter Burns for this piece on a legal theory that could be used to protect voters from True the Vote:
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.
And here’s the legal theory:
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.
You’re going to hear “both sides do it” on this issue and that’s not true, so I thought I’d compare what voter protection lawyers and others actually do on the ground in Ohio with what True the Vote has done in past elections in Texas and Massachusetts:
a new threat emerged in 2010 when an organized and well-funded Texas-based organization with defined partisan interests, the King Street Patriots, through its project True the Vote, was observed intimidating voters at multiple polling locations serving communities of color during early voting in Harris County.8 Members of this Tea Party-affiliated group reportedly interfered with voters — allegedly watching them vote, “hovering over” voters, blocking lines, and engaging in confrontational conversations with election workers.9 Under Texas law, poll watchers are not allowed even to speak to a voter.
In a 2011 special election in Massachusetts, a Tea Party group was reported to have harassed Latino voters and others at the polls in Southbridge, Massachusetts. The Southbridge town clerk protested these actions, reporting that targeted voters left saying, “I’ll never vote again,” while a retired judge witnessed “citizens coming from their voting experience shaken or in tears.”10
And this is what voter protection volunteers do in Ohio:
The lead voter protection people in each county are Ohio lawyers, and we formally “enter” at each polling place. The process in Ohio requires the voter protection volunteer to hand an entry signed by a judge to the top poll worker at each polling place. We’re then sworn in with an oath that is not unlike the oath that poll workers take. If we (or any volunteer who is working with us) were to harass voters or poll workers, the person who submitted the entry would have to answer for that behavior. In my case, I would have to answer for it immediately, because I live here and I practice here. I’m easy to find after Election Day. I make my living here, so it’s unlikely I’d be harassing voters or poll workers 3 miles away from the law office.
I have never approached a voter at a polling place. What I do is check in, sit quietly and watch and listen. What I’m looking for in Ohio is a voter turned away or given a provisional ballot. If I believe the voter is being turned away or given a provisional ballot in error, based on the rules in Ohio, I approach the presiding judge and ask him or her to explain and if there is no valid reason for the refusal or provisional ballot, I ask that the lead poll worker intervene and correct the problem. If the problem isn’t fixed, I walk outside to the parking lot and call the Board of Elections.
I have yet to see a poll worker acting maliciously. The biggest problem we run into is “belt and suspenders” poll workers. These are poll workers who are not well-trained or confident in their understanding of the process so they restrict voting in excess of the rules: ask for two (or more!) pieces of ID, make a judgment call based on, I don’t know, their “gut”, shunt the voter to a provisional ballot “to be on the safe side”, things like that.
Compare what I’ve described with True The Vote, who descend on a minority precinct and “make the targeted voters feel as if they are ‘driving and seeing the police following you.’
If you’re harassed or intimidated by poorly trained conservative activists in or around a polling place report that first to poll workers then to election board staff and then to a police agency. I’m fairly confident True The Vote are going to wear out their welcome in Ohio polling places quickly, because voters and poll workers are well-intentioned and simply trying to get the job done. But vote. Don’t let them succeed in their goal, which is stopping certain targeted groups of citizens from voting.