The Klan Act: How an Obscure Law Could Cut Down on Bullying at the Polls

It's time to dust off a Reconstruction-era statute aimed at private citizens who try to block minorities from voting.

A poll-watcher checks ID outside a precinct in Florida in 2004. (Gary I. Rothstein/Reuters)

The year was 1976, the place a voter precinct in Virginia. There were no more formal racial barriers to voting -- no poll tax, no literacy test, no grandfather clause. Just an 18-year-old African-American man, and a small grey-haired lady with a concerned air.

There'd been some question about the young man's registration. The caller desk at the city registrar's office, however, had cleared him to sign an affidavit of registration and cast his first vote. That was when the helpful poll judge stepped in.

He could certainly vote if he chose, she told him. But there might be questions about his registration later. The FBI might come to his house and speak to him. Would he be able to get a lawyer?

The young man went home. I often wonder if he ever tried to vote again.

That memory may explain why the prospect of thousands of citizen vigilantes mobbing polling places outrages me.

Since the 2000 election, voices on the right have systematically stirred up false outrage about "vote fraud," by which they claim to mean individuals showing up at the polls and voting under false names. Since the adoption of the Australian ballot in the late 19th century, evidence suggests, that type of voting has become vanishingly rare. There is, however, a subtext to this. Historically, in the American mind, "fraudulent voting" has often meant "voting by immigrants, minorities, or the uneducated."

Republican-dominated state legislatures have adopted partisan-minded ID requirements seemingly calculated to reduce Democratic turnout to manageable proportions. Those laws have been taking their lumps in court, with a number of them put on hold recently.

But laws are only one facet of the war on voting.  There is also voter intimidation -- and in that area, the prospects for November look grim. Recently, The Atlantic, the New York Times, and Alternet published startling reports about a well-financed group called True the Vote, an outgrowth of a Texas "patriot" group, that plans to flood polling places with poll-watchers who will aggressively challenge voters who strike them as potential "impersonators." The reports detail surprisingly frank discussions of plans -- similar to one the group's forerunner carried out in Texas in 2010 -- to target districts with high percentages of minority voters, and to look for voters who "don't look like" citizens.

We won't know until Election Day whether True the Vote and allied groups will be able to mobilize the one million voter vigilantes they are hoping for. But even a smaller showing could paralyze some polling places. Aggressive vote-challengers have the potential to slow the lines to the point that some voters will leave without casting a ballot.

There's also the ever-present possibility of misleading signs and flyers warning voters of non-existent ID requirements. Judge Robert Simpson of Pennsylvania's Commonwealth Court recently enjoined state officials from requiring the IDs specified in that state's strict ID law -- but he explicitly allowed officials to ask for the ID. Officials should give information to those who don't have ID, he said, but allow them to vote. As I learned in the South in 1976, there are ways to "give information" to voters that will send many of them home. In all, the mere reduction in oppressive laws does not mean we won't see an organized, and to some degree successful, effort to disfranchise voters in much of the country.

What can be done?  Rep. Elijah Cummings (D-MD) recently asked True to Vote to provide documentation of how it selects voter registrations to challenge. But as a minority member of the House Oversight Committee, Cummings can't issue a subpoena or hold a hearing.  The Justice Department's Civil Rights Division is already grossly overextended with its involvement in Voting Rights Act and redistricting cases.

But there is one remedy specifically aimed at groups of private citizens who band together to intimidate other citizens seeking to exercise their rights. It is called the Ku Klux Klan Act. As Brentin Mock of Colorlines pointed out yesterday, the Act directly addresses this kind of organized vote suppression.

Presented by

Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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