In response to a lawsuit by Sen. Tom Daschle, a U.S. District Judge ruled this morning that Republican poll watchers in South Dakota were intimidating Native American voters by following them out of polling places and taking down their license plate numbers. But in another decision today, the 6th Circuit Court of Appeals ruled that GOP poll watchers weren’t intimidating Ohio voters by checking their names against a list of registered voters. So, what exactly do the courts consider voter intimidation?
Courts consistently rule that physical violence or threats constitute voter intimidation, but, as today’s conflicting rulings show, there is no judicial consensus on which nonviolent acts are legally considered intimidating. State and federal laws that ban intimidation don’t offer much guidance on how courts should define it. The Ohio law, for instance, says that “no person shall … attempt by intimidation, coercion, or other unlawful means” to keep someone from voting. The most significant federal law banning intimidation is the Voting Rights Act of 1965, which states in Section 11(b) that “No person … shall intimidate, threaten, or coerce … any person for voting or attempting to vote.”
The Voting Rights Act was written in the days of Jim Crow, when African-American voters were often kept from casting their ballots by threats of physical violence or actual physical violence. As electioneering tactics have grown more subtle, however, courts have had to decide what constitutes voter intimidation on a case-by-case basis. The suit alleging intimidation by poll watchers in Ohio cited a New Jersey consent decree from 1982 in which the Republican National Committee, without admitting to any unlawful behavior, agreed to stop using so-called “ballot security squads” to check voters’ credentials in predominantly black and Latino precincts. In his dissent in the Ohio case, 6th Circuit Judge R. Guy Cole Jr. cited 1992’s Burson v. Freeman, in which the Supreme Court found that Tennessee’s ban on “the solicitation of votes and the display or distribution of campaign materials” within 100 feet of polling places served the state’s “compelling interests in preventing voter intimidation and election fraud.” The court, though, did not indicate what kind of intimidation such a buffer zone would protect voters from.
Both of the above cases as well as the Ohio and South Dakota rulings deal with intimidation at a polling place. The case law about voter intimidation that takes place elsewhere is even more sparse. In 1992, the DOJ asserted that you can intimidate voters by mail. It filed suit after North Carolina Republicans and the Jesse Helms campaign sent postcards to black voters with warnings about the penalties for voter fraud. The case was settled with a consent decree that banned “ballot security” programs “directed at qualified voters in which the racial minority status of some or all of the voters is one of the factors in the decision to target those voters.”