This topic is monitored by Moritz Law Professor Donald B. Tobin
Efforts to Suppress the Vote: An Overview
Concern about vote suppression has surfaced in this year's presidential election. Several incidents have received national attention, such as statements by a Michigan Republican state representative, John Pappageorge, who told the Detroit Free Press that the GOP will have "a tough time" if "we do not suppress the Detroit vote;" Detroit is 83 percent African American. 1 While this comment may be simply an instance of sloppy language, it still raises concern. In another incident that occurred during the January primary in New Hampshire, independent voters received calls erroneously informing them that they could not vote in the primary election. 2 The New Hampshire Attorney General's office did not know was responsible for making the calls, "although the complaints suggest they were from political campaigns or pollsters." 3 Given concerns raised by these incidents and several others, it is important to consider how the law applies to efforts to undermine the electoral process by discouraging people from voting.
Vote suppression can be explained by classifying the different efforts to undermine the vote into three categories.
Individuals who support one candidate and desire to suppress votes for the candidate's opponent can do so in a number of different ways. While there is no set formula for classifying acts of vote suppression, the following three categories help to distinguish the different techniques. Voters can be prevented from potentially voting for the other candidate (1) by direct threats of intimidation, (2) by suppressing turnout through disinformation and scare tactics, and finally, (3) by efforts to keep the other candidate's message from being communicated.
Before discussing the three techniques, understanding the different reasons behind vote suppression is important. Historically, African-Americans have been victimized simply because of their race. The NAACP and People for the American Way Foundation have published a Special Report that reviews more than a hundred years of efforts to suppress minority voters following emancipation, the Reconstruction, and the years immediately following passage of the Voting Rights Act. 4 However, acts of vote suppression are sometimes based not on race, but on party-affiliation, age, or other motives. For example, college age voters, who tend to vote more liberally, might be targeted because of their age. Some of the laws addressing efforts to suppress the vote apply only to racially discriminatory suppression efforts, while other laws prohibit suppression tactics regardless of motivation.
The first type of vote suppression, direct threats of intimidation, is subject to criminal punishment under both federal and state law. Among the federal laws that can be used to challenge direct intimidation, the most important is the Voting Rights Act of 1965. Section 11(b) of the Voting Rights Act states that "no person […] shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote." 5 The statute likewise prohibits such intimidation aimed at efforts to mobilize others to vote or to facilitate their vote. Although other provisions of the Voting Rights Act concern racially discriminatory practices, this provision outlaws intimidation regardless of motivation. Likewise, some state statutes have explicit language outlawing this type of vote suppression. For example, in Ohio the statute states that "no person shall before, during, or after any primary, convention, or election attempt by intimidation, coercion, or other unlawful means to induce" a person "to vote or refrain from voting at a primary, convention, or election for a particular person, question, or issue." 6 While these statutes clearly cover the explicit intimidation that was common in the past (remember the physical violence of the Jim Crow era), today vote suppression tends to fall in the latter two categories. As a result, vote suppression becomes harder to challenge.
The second type of vote suppression is achieved by suppressing voter turnout through different measures, such as disinformation and scare tactics. For example, in Texas earlier this year, a local district attorney claimed that students at a majority African-American college were not eligible to vote in the county where the school is located. 7 The attorney made this claim as well as threats to prosecute voters who failed to have a "legal voting address" in a letter to the local election administrator, which was later published in a local newspaper. 8 However, the district attorney was simply wrong, as a 1978 federal court order prohibited the local registrar from treating the University students differently than other county voters. 9 The Texas example is illustrative of how disinformation can be used to suppress voter turnout.
Voter turnout can also be suppressed through the use of scare tactics. In Florida, state troopers were sent by the Florida Department of Law Enforcement into the homes of elderly black voters in Orlando. As described by New York Times commentator Bob Herbert, the state troopers were sent in a "bizarre hunt for evidence of election fraud" despite a finding by the department last May "that there was no basis to support the allegations of election fraud." 10 The officers arrive armed, and for elderly African-Americans who remember the torment inflicted on blacks who tried to vote in the South fifty years ago, the presence of armed officers discussing voting matters is disturbing. 11
While the same laws responsible for making direct threats of intimidation illegal might be used to challenge this second technique of vote suppression, those accused of suppression can sometimes offer plausible responses. The Florida Department of Law Enforcement, for example, claims that election fraud is a serious matter requiring investigation and that sending officers to the homes is an effort to make those questioned feel comfortable in a "more relaxed atmosphere." 12 As stated above, what constitutes "intimidation" is not clear, either through statute or case law. If the disinformation given in Texas or the questionable home visits in Florida were done with the purpose of intimidating voters, one could argue the Voting Rights Act or state statutes similar to Ohio's statute would cover these acts. Also, if proof of racial discrimination were available, other Civil Rights laws would be invoked. However, the intent to intimidate is often difficult to prove.
The final technique of vote suppression occurs when supporters of one candidate try to keep the opponent's message from being communicated. In Upper Arlington, Ohio, a small suburb of Columbus, Democrats are reporting that upwards of 150 signs have been snatched from the lawns of John Kerry supporters. 13 While sign stealing is illegal in its own right, the question here is whether sign stealing counts as vote suppression. By removing the candidate's advertisements, opponents remove the candidate's message from the public discourse. When the message is not reaching the public, the outcome of the election might be affected: that, after all, is the reason for stealing the sign. While this seems also to count as vote suppression, the language of the statue has not been extended this far.
Can vote suppression that involves techniques other than direct threats be prevented?
What makes vote suppression (other than direct threats) so difficult to prevent is the reality that in many instances, there are grey areas in the law as to what counts as voter intimidation. A campaign attack ad designed to have the effect of keeping a voter from going to the polls surely is not illegal (unless deliberately or recklessly false); rather, it is simply effective negative campaigning. However, information about election procedure distributed to the public that is incorrect feels more like "illegal suppression." For example, a group that knowingly distributes incorrect information stating that a valid driver's license is needed to vote might be guilty of vote suppression. This would be especially true if the group accompanied its deliberate disinformation about voting procedures with a warning that voters could be punished if they attempted to vote without a driver's license.
Suppose, however, that truthful information is given to portions of the public with the purpose of suppressing the vote. For example, a leaflet distributed in a minority neighborhood stressing truthful voting identification requirements might trouble certain groups who are wary of proving their identification to the government. Even though entirely accurate, the leaflet might have the desired effect of reducing turnout from a minority neighborhood. Vote suppression such as this example is difficult to challenge without proof of an improper motive.
In conclusion, preventing vote suppression (other than direct threats) through legal means has two main problems to overcome. First, "intimidation" needs to be defined to cover the more subtle forms of intimidation that occur today. Without a statement to broaden "intimidation" from the courts or the legislature, covert acts of vote intimidation are likely to go unpunished. Secondly, even if "intimidation" were defined to cover such creative forms of vote suppression, finding the "smoking gun" of illicit motive is still likely to be a problem. Plausible legitimate excuses are often available to explain acts of suppression. In the absence of effective legal remedies, the only alternative is the vigilant exercise and defending of voting rights to counteract improper tactics.
1. Associated Press, Democrats Blast GOP Lawmaker's "Suppress the Detroit Vote" Remark, Detroit Free Press, July 21, 2004.
5. The Voting Rights Act, 42 U.S.C. § 1971 (1965).
6. Ohio Rev. Code § 3599.01(A)(2).
7. NAACP, supra note 4 at 6.
10. Bob Herbert, Voting While Black. N.Y. TIMES, Aug. 20, 2004 at A23.
13. Robert Vitale, Election War Waged at Literal Grass-Roots Level, COLUMBUS DISPATCH, Aug. 29, 2004 at B01.