Are True the Vote’s Poll Watching Activities Illegal?

Rep. Elijah Cummings and law experts say if they are targeting people of color, a court could find True the Vote operations unlawful.

By Brentin Mock Oct 08, 2012

Between the shenanigans uncovered by GOP operative Nathan Sproul and Strategic Allied Consulting with falsified voter registration forms, and the ongoing voter challenges waged by tea party groups "empowered" by True the Vote, Rep. Elijah Cummings had seen enough to believe voter suppression might be in the queue for Election Day. Last week he sent a letter to True the Vote’s founder Catherine Engelbrecht requesting documents that would explain the ballot security organization’s operations.

The letter in many ways was also a categorical rundown of recent True the Vote (or True the Vote-inspired) actions that suggest suppression if not intimidation are their modus operandi. The letter lists Engelbrecht stating at a Conservative Political Action Conference meeting that she "(a)bsolutely" was working to have the Obama administration replaced, hundreds of Ohio college students whose voter status were challenged incorrectly by True the Vote affiliate Ohio Voter Integrity Project, a black Ohio family incorrectly challenged by the same group, and more of the same false reporting in North Carolina and Cummings’ state of Maryland.

Cummings wrote, "If these efforts are intentional, politically motivated, and widespread across multiple states, they could amount to a criminal conspiracy to deny legitimate voters their constitutional rights."

True the Vote has responded saying they would avail themselves "to any official House Committee on Oversight and Government Reform inquiry," and has invited Rep. Cummings to a briefing meeting and to participate in their poll watcher trainings. But they have not agreed to hand over the documents he has requested.

Engelbrecht wrote in a response letter, "It was of great concern to me that you had suddenly requested a considerable amount of documentation on the basis of news reports which offered limited balance and an over-simplification of the facts," and that Cummings’ letter "demonstrate a second-hand knowledge or poor staff- researched understanding of our organization’s activities."

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J. Christian Adams, a former US Department of Justice attorney and True the Vote partner, was much harsher, writing on his blog that "Cummings needs to get himself a lawyer who knows more about election law and less about playing the race card.  First of all, there is no federal statute which mentions ‘voter suppression.’"

Speaking with Rep. Cummings over the weekend, he said he was "very saddened" by comments that he was "playing the race card." Said Cummings, "Every two years I raise my hand to protect the rights of the citizens of our country and if I see that there is deliberate effort to deny anyone their vote, I don’t care what color they are. And if it appears to be an effort to either sway an election or to improperly suppress a vote I’ve got to at least do what I’m sworn to do under oath."

Adams point about "voter suppression" not being mentioned in federal law is only correct that those two words are literally not in the text. But the idea that voter suppression as an action is unaddressed by federal law is completely false, and it’s really a shame that Adams would attempt to make this point at all. Section 1985 of Title 42 of our federal laws states:

If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; … or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States…

…Then they (the citizens harmed) may sue the offending party. It may not have the word "suppression" spelled out, but we know what’s being described here. Law professor Simon Stern, a former clerk to a Ninth Circuit US Court of Appeals judge and law lecturer at Harvard, explained to me that Section 1985 was originally part of the KKK Act of the 1870s and dealt with direct confrontation with newly freed African Americans who were trying to vote.

The law addresses "People who conspire to intimidate people or make them anxious or fearful about exercising their right to vote," said Stern. So when True the Vote says they want voters to feel like they’re "driving and seeing the police following you," says Stern, "It seems to me — look, how would you feel about it? I hear it as someone who is very familiar with the phenomenon of driving while black and wants people who he is advising to look after people who are voting to make them feel like they are voting while black."

(True the Vote attempted to explain their "police" quote here.)

Stern went on to say that the police quote, coupled with the implementation of True the Vote’s voter registration challenger activities, where they comb voter rolls and challenge any voter deemed suspicious, could run afoul of the law, especially if True the Vote is targeting predominantly black or Latino districts. Cummings’ document request could reveal such targeting practices if they exist — if True the Vote hands the documents over, which they have not said for certain they would do.

Meanwhile, there are plenty of reports that show True the Vote has targeted neighborhoods that are majority people of color. In May, we reported from True the Vote’s guest speaker John Fund (author of the book Stealing Elections) at their national summit told the tea party audience that minority neighborhoods needed to be targeted because that’s where the voter fraud was, while "nice suburban areas" were "insulated" from voter fraud.

The New York Times recently reported about True the Vote’s 2009 dealings:

In Houston, the group targeted the Congressional district represented by Sheila Jackson Lee, a Democrat who is black. Ms. Engelbrecht said the group settled on Ms. Lee’s district because thousands of addresses there housed six or more registered voters, which it took as an indication of inaccurate registrations. The methodology, which the group still uses, could disproportionately affect lower income families.

The Brennan Center for Justice produced the report "Voter Challengers," which directly addresses a lot of True the Vote’s activities and says:

In 2011, a Houston-area organization called True The Vote announced its goal of recruiting one million people to serve as poll-watchers during the 2012 general election. The group has been supporting local activists’ efforts to challenge voters in dozens of states over the past few months. In May, one of these local activists challenged over 500 voters in Wake County, North Carolina, most of whom were voters of color.

Myrna Perez of the Brennan Center told me it is difficult to identify the hard legal line on True the Vote’s activities but, "What I do know is that these private security operatons, because they are not professionals who make decisions about voter eligiblity day in and day out, are making mistakes."

A litany of those mistakes are spelled out in Rep. Cummings’ letter, as well as plentiful reports on True the Vote from media outlets such as News 21, The Washington Post, The Baltimore Sun, The Atlantic, Talking Points Memo, Washington Monthly, and many others. Even Ohio Secretary of State Jon Husted, who is no friend of voting rights advocates, said of the True the Vote-empowered Ohio Voter Integrity Project, "When you cry wolf, and there’s no wolf, you undermine your credibility, and you have unjustly inconvenienced a legally registered voter, and that can border on voter intimidation." (Husted pulled out of a speaking engagement with True the Vote after Voting Rights Watch 2012’s profile of the group was published.)

Rep. Cummings told me he was "emotional" about these operations. "It is because of the right to vote that has allowed me, the son of sharecroppers, to be a congressman. The right to vote is what has allowed folks in my district to have some say over their destiny. At 62 years old it pains me to know that as I march towards the end of my life that I would still be fighting this fight."