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

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

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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.

Passed in 1871, the applicable part of the Act is currently codified at Title 42 of the United States Code, § 1985(3):

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 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. . . [and] one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.

What this antique statutory language means is that if ordinary, private people agree to go out and try to stop people from voting, and then carry out their plan, anyone whom they injure may have a right to take them to federal court for damages, and injunctions, and attorney fees.

The Act was passed to keep the Klan and other Southern vigilantes from targeting African Americans and Southern Republicans at the polls or in other exercise of their civic rights. Over the years, the courts have interpreted the statute to require a "class-based animus" -- that is, the conspiracy must aim at individuals because of their race or something like it -- national origin or perhaps immigration status. But if that requirement is met, private intimidation of voters or would-be voters is covered by the Act. The fact that those sued aren't government officials makes no difference.

The recent news reports make out all the elements of the claim under the Act: The new vote vigilantes are targeting voters because of their perceived national origin, imagining clearly that anyone with brown features must be a non-citizen. They are targeting other voters, like those in Sheila Jackson Lee's district, because of their perception of the racial composition of the precinct they vote in. They plan to use intimidation, confusion, and even pretended color of law to send voters home without having exercised their rights. (In fact, in some areas, they may have the cooperation of public officials in this; Steven Rosenfeld's Alternet report captures the Colorado Secretary of State, and a representative of the Attorney General's office, encouraging True the Vote's efforts.)

Civil rights lawyers can use the Act to bring this conspiracy into court, and into the light of day. It's hard to know what the Supreme Court would do with a case like this. Its only recent KKK Act case, Bray v. Alexandria Women's Health Clinic, held that a women's health center could not use the act against an anti-abortion group, because the alleged conspiracy did not impact a right -- the right to travel interstate -- protected against private interference. Case law from the civil rights era, however, suggests that the right to vote in federal elections is a more serious matter. "The right of citizens to vote in congressional elections, for instance, may obviously be protected by Congress from individual as well as from State interference," the Court said in 1951.

That it needs protection against individuals has been obvious to me since that long-ago election day in Virginia. Heroic work by voting-rights lawyers has helped tame the official war on the ballot. Unfair as the burden on them may seem, those same lawyers may be needed to step in against the new Ku Klux Klan.

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Garrett Epps, a former reporter for The Washington Post, is a novelist and legal scholar. He teaches courses in constitutional law and creative writing for law students at the University of Baltimore and lives in Washington, D.C. His new book is American Epic: Reading the U.S. Constitution.

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