Jordon T. Stringer, Criminalizing Voter Suppression: the Necessity of Restoring Legitimacy in Federal Elections and Reversing Disillusionment in Minority Communities

• Publication year: 2008

COMMENTS

CRIMINALIZING VOTER SUPPRESSION: THE NECESSITY OF RESTORING LEGITIMACY IN FEDERAL ELECTIONS AND REVERSING DISILLUSIONMENT IN MINORITY COMMUNITIES

INTRODUCTION

Approximately one week before the 2004 election, fliers from a fictitious group called the "Milwaukee Black Voters League" flooded an African- American neighborhood in Milwaukee, Wisconsin.¹The documents appeared to be honest, informational leaflets designed to provide "warnings" about election-day procedures.²Not only were these "warnings" deeply inaccurate, they were also specifically designed to prevent African Americans from coming to the polls. The fliers warned:

If you've already voted in any election this year . . .

If you've ever been found guilty of anything, even a traffic violation . . .

If anybody in your family has ever been found guiulty [sic] of anything you can't vote in the presidential election.

The time to register for voting has expired. If you haven't registered you can't anymore.³

The fliers ended by threatening: "If you violate any of these laws you can get ten years in prison and your children will get taken away from you."⁴

Unfortunately, as the past few federal elections have demonstrated, examples like the one in Milwaukee are neither isolated nor insignificant. Someone mailed a similar fake letter to newly registered voters in Lake County, Ohio, informing them that voters registered through the NAACP or

Kerry campaigns were illegal.⁵False mailings informed voters in Columbia,

South Carolina, that credit checks and handwriting samples were necessary to vote and that those with outstanding parking tickets or unpaid child support would be arrested at the polls.⁶In Orlando, Florida, people with clipboards traveled door-to-door, asking others how they intended to vote and telling them that they did not need to bother going to the polls because their votes had already been recorded.⁷

The examples are numerous, and as a result of increased national attention, concerns about campaign strategies directed at suppressing voter turnout have risen.⁸In response to many of these instances, the political party accused of distributing the inaccurate statements has claimed that its opponent actually perpetrated the tactics in an effort to tarnish its reputation.⁹In many instances, officials are unable to uncover the true sources of the deceptive tactics, and defrauded parties have no redress.¹⁰

This Comment explores the existing legal framework for remedying voter suppression in recent election campaigns. Part I summarizes the history of voter suppression in America and how it has evolved from physical violence and legalistic barriers into more subversive forms of disenfranchisement that undermine the legitimacy of elections. Instead of the overt forms of discrimination that persisted through much of America's history, politicians now often rely upon disinformation campaigns,¹¹scare tactics in the form of

"ballot security programs,"¹²and law enforcement methods to coerce and manipulate citizens' voting behaviors.¹³

Part I of this Comment operates on the belief that reports and anecdotal evidence of voter intimidation are jeopardizing the credibility of the United States' voting process.¹⁴Voter suppression efforts in modern elections have contributed to rampant disillusionment in minority communities, particularly when one considers the history of voter suppression that plagues the United States. This Comment attempts to contextualize the surging problem of voter suppression so that Congress may enact laws to curb these tactics.

Part II outlines the existing legal framework for prosecuting voter intimidation, which includes the Civil Rights Act of 1957 and the Voting Rights Act. Case law and examples from previous elections will expose the shortcomings of the legal framework and its remedies. This Comment will focus on the inconsistent applications of these statutes, the difficulty in providing enough support for an actionable claim, and the statutes' unintended consequences that have actually permitted voter suppression efforts in past elections.

With contemporary campaigns exploiting the weaknesses of the current legal regime, Part III of this Comment investigates the legal ramifications of a modern example of voter suppression, United States v. Tobin.¹⁵In this case, the prosecutors utilized a seldom-used federal phone harassment statute to successfully prosecute political operatives who were involved in an elaborate phone-jamming scheme.¹⁶This scheme was designed to stifle the get-out-the- vote efforts of a political opponent.¹⁷In doing so, the scheme also arguably infringed upon the constitutionally protected right to vote.¹⁸Part III explains the decision in the case, its factual background, and the arguments by both parties in this case of first impression.

Particularly noteworthy is the unique application of a federal phone- harassment statute to the campaign arena,¹⁹as well as the defendant's puzzling acquittal on charges of conspiring to suppress New Hampshire citizens' votes.²⁰Tobin presents an example of how modern campaigns may attempt to defraud citizens of their fundamental right to vote, and its holding illustrates the difficulty in proving that a political campaign has violated existing voting laws. At the same time, the application of a seldom-used federal statute to the election context offers an alternative approach to the successful prosecution of voter suppression.

Using Tobin's conviction as a model, Part IV analyzes existing federal statutes regarding fraud and harassment to construct a legal framework that responds more effectively to the voting complaints of intimidated or suppressed voters. Because voting rights legislation is often ill-equipped to address tactics that are not overtly racist or illegal,²¹prosecutors must look to other federal statutory provisions to deter such behavior. Computerized phone messaging systems and inaccurate mass mailings, in particular, represent contemporary strategies of voter suppression that reasonably fall under the purview of existing statutory provisions.²²Greater prosecutorial facility in attacking these suppressive techniques may thus yield more effective penalties to deter voter suppression.

Part V emphasizes the importance of fashioning more effective remedies that can address the inherent shortcomings within the existing system. Part V devotes considerable attention to the recently proposed legislation by Senators Barack Obama and Charles Schumer,²³which offers a disciplined and sensible approach for restoring greater legitimacy to the voting process.²⁴Nonetheless, partisan perspectives on voting rights complicate the situation, and combating voter suppression remains a contentious issue in Congress.²⁵For this reason, Part V closes by examining the political contours of this debate so that this

Comment may more effectively recommend future courses of action to combat voter suppression.

Voter suppression threatens the legitimacy of America's voting system. As a result, lawyers and lawmakers must devise creative lawsuits and strengthened legislation to address its invidious effects. By providing a more effective framework for combating efforts to suppress voters, this Comment offers the possibility of traversing the growing chasm of distrust that persists in minority communities toward the voting process. Tactics of suppression have different effects depending on the communities they reach, and these effects are inextricably tied to past injustices. Unfortunately, these injustices continue in campaigns through more decentralized and subversive strategies of suppression. The question of how better to apply the existing legal framework is thus of vital importance.

I. VOTER SUPPRESSION: A BRIEF HISTORICAL OVERVIEW AND DISCUSSION OF MODERN TECHNIQUES

The legacy of voter suppression in the United States is almost as long as the country's voting history. Since the Civil War's conclusion and subsequent "abandonment of constitutional principles in the wake of Reconstruction," the United States has struggled to guarantee equal voting liberties to all of its citizens.²⁶As society increasingly integrated minorities and Congress passed landmark civil and voting rights legislation, political operatives continued to engage in subtle tactics aimed at discouraging minorities and political opponents from reaching the polls.²⁷

Whatever the motive behind such tactics, misinformation creates genuine confusion and fear within its target communities.²⁸Of particular concern is the belief that politicians target minority voters for scare tactics and intimidation techniques to deter them from voting.²⁹Although the overt and violent acts of intimidation before the 1965 Voting Rights Act are no longer present, politicians and their operatives continue to implement sophisticated disinformation campaigns designed to lower voter turnout.³⁰The consequence is that African Americans and, with increasing frequency, Latinos³¹are growing disillusioned with the political process.³²

A. Voter Suppression of Minorities: Historical Injustices

An American political climate emphasizing the suppression and intimidation of minority voters began in the wake of Reconstruction following the presidential election of Rutherford B. Hayes in 1876.³³Jim Crow legislation and "legalistic barriers," such as poll taxes, grandfather clauses, and literacy tests prevented African Americans in the South from voting.³⁴Even after Congress eradicated such barriers and passed the Voting Rights Act of

1965, officials in many states exercised other techniques to keep African Americans from the polls.³⁵In the years immediately following the passage of the Voting Rights Act, African Americans faced vote dilution, the inability to run for office, vote fraud, and intimidation at the polls.³⁶

Such barriers, in less overt forms, persisted into the 1980s and continue today. A 1981 study of election practices in Georgia demonstrated the...