The frivolous effort to mass-disqualify voters

The rise of mass voter challenges, explained

Election denial claims are unfounded in reality. That doesn’t mean they come out of nowhere. 

By this time in 2020, you could have easily predicted what false claims about the election would likely be. If Trump were to lose reelection, it was a safe guess he and his supporters would point a finger at policy changes that made it easier to vote by mail in a pandemic — drop boxes and so on — as reasons he lost. The seeds of the conspiracy theories were planted way before anyone actually voted. 

Something similar is happening this time around. But now the focus is all on “cleaning the voter rolls” of supposedly “ineligible” voters. 

Some lawmakers, led by Speaker Mike Johnson, are pushing legislation targeted at preventing noncitizens from voting — nevermind that it’s already illegal in all federal elections and not at all a significant issue (the Heritage Foundation’s own research has found only 24 instances of noncitizens voting illegally across 20 years). Election denial organizations and the RNC are filing lawsuits around voter rolls, list maintenance, and supposedly deceased voters (that these lawsuits are likely to be quickly dismissed seems to be no obstacle). Slowly, the narrative is building: “people who aren’t allowed to vote are on the voter rolls!”

You don’t have to be a fortune teller to know where this is going. Mass voter challenges — efforts to identify and contest purportedly “ineligible” voters en masse — are likely to be an election subversion tactic of choice this time around. The goal is not just to try to disqualify some voters and throw chaff into the machinery. They’re also a disinformation tool to cast an air of doubt over elections and potentially (just like last time) justify efforts to overturn the results. 

I can already hear the bad-faith and circular reasoning: “how can an election where the eligibility of hundreds of thousands of voters was disputed possibly be trusted?” 

A paper published this week by Clint Swift, Sara Loving, Jessica Marsden, and Orion Danjuma explores the growing trend: Unraveling the Rise of Mass Voter Challenges. These frivolous mass challenges are already happening and they’re likely to get worse.

Back up: what’s a mass voter challenge? 

Let’s start with a quick primer on how voter rolls work: right now, your local election officials keep a list of registered voters. If you’re registered to vote, you’re on that list. 

The list is constantly changing. Some people turn 18 or become citizens, others move from somewhere else and need to be added. Other people need to come off the list: maybe they moved away, maybe a criminal conviction. Maybe they died. 

This is why election officials conduct regular processes to add and remove names, update addresses, and so on. This is called “voter list maintenance,” and it involves cross-checking data from all sorts of official records. It’s not perfect, but it generally works. 

In addition to these tech-heavy, modern processes, almost all states have an older, pre-technology-era list maintenance tool: registered voters can challenge the eligibility of other registered voters. These laws are, quite literally, the product of a time when records were kept by hand and the only way local officials might know something about you is if your neighbors told them. 

Today, these pre-internet laws are combining with modern technology (and modern election conspiracy theories) in a dangerous new way. Election denier groups like True the Vote and Election Integrity Network have created software that allows people to review voter roll data — which is public — and helps them file challenges at scale. (Read more about what Clint, Sara, Jessica & Orion call an “emerging mass challenge infrastructure” here).

The result is, already, thousands and thousands of voters whose eligibility has been frivolously challenged. 

What’s wrong with mass voter challenges? 

Some reassurance: the overwhelming majority of these challenges are plainly frivolous and therefore likely to be quickly rejected. As the authors write:

The vast majority of mass challenges are deemed invalid. In Georgia, even the most receptive county threw out 96.6% of the challenges brought by election conspiracy groups.

But that doesn’t mean they’re harmless. These challenges mostly rely on flawed data or incomplete datasets, leading to mismatches and inaccurate conclusions. As anyone who has attempted to find a friend on Venmo knows, different people have the same names. And some of those people even have the same birthday or other distinguishing characteristics. 

For example, there are approximately 31,000 people named “James Smith” in the United States. So, just because a James Smith born on June 21, 1947 might be deceased, that doesn’t mean there isn’t another James Smith born on June 21, 1947 who is very much alive and very much still eligible to vote. 

If James (the one who is alive) gets swept up in a frivolous challenge, that could directly harm him in three big ways:

1. James could face intimidation. A number of mass challenge efforts have conducted intimidating “door knocking” campaigns, frequently without making it clear that they are not election officials or law enforcement. Yikes.

2. James might be discouraged from voting. Many eligible but erroneously challenged voters may receive a notice in the mail and (wrongly) fear that they could face consequences for casting a ballot.

3. If James misses the notice, he could be removed from the rolls. In rare circumstances, an erroneous challenge could actually prevent him from voting in November if he fails to respond to that notice. 

And even if those things don’t happen, James could still suffer from long lines or other issues if his local election officials are bogged down by the challenges. As the paper explains: 

Mass challenges add significantly to the workload of already under-resourced local election administrators, taking focus from other crucial responsibilities that make our elections function.

The end goal is to delegitimize elections

I generally don’t recommend trying to interpret the motivations of election deniers. But you have to understand: their interests are served even if these challenges fall flat. 

Just like the noncitizen voting legislation and the lawsuits against election officials, challenges help cast a pall of distrust over elections regardless of whether they carry any truth. As Orion Danjuma, one of the authors, puts it:

It's impossible to take these as good faith efforts to ‘clean the rolls.’ We must accept them for what they are; crude attempts to cast doubt on the integrity of our electoral process.

It may sound worrying to hear that “hundreds of thousands of voters” have been accused of being ineligible. But the context of who is doing the accusing and the credibility of the accusation is what really matters. (I might accuse the Boston Celtics of being worse at basketball than the Sacramento Kings, but, like these mass voter challenges, I don’t recommend anyone take that accusation seriously.) 

In the context of who is filing them, these mass voter challenges are, more than anything, a way to manufacture uncertainty and unease. Unease that, like in 2020, could be used to delegitimize or even subvert the election. 

The good news: there are many legal remedies against abuse

If your first reaction is — ”how is this legal?” Great question, it probably isn’t. As the paper explains, “potential challengers should know that schemes to file frivolous mass challenges will likely violate a number of federal and state laws. Both individuals and organizations that file challenges, and any boards of election that accept them, could be liable for their conduct.” 

These laws include: 

• The National Voter Registration Act (NVRA), which prevents voters from being wrongfully removed from the rolls and would likely be used to block mass voter challenges — especially ones using shaky, unverified databases. 

• The Voting Rights Act, which prohibits, among other things, any conduct that could intimidate, threaten, or coerce a reasonable voter. Mass challenge schemes without factual support could face lawsuits under the VRA. 

• The Klu Klux Klan Act, which, separate from the VRA, prohibits conspiracies to intimidate and threaten voters and was deliberately designed to cover a broad range of intimidating conduct (and, critically, unlike the VRA, it authorizes monetary damages for harms). 

• State voter intimidation, anti-impersonation, and anti-fraud laws. Many states include their own laws against voter intimidation, as well as prohibitions on impersonating public officials. And, in many cases, challengers may simply violate state fraud statutes if they misrepresent information in filing a challenge. 

This is where the parallels to the last round of conspiracy theories feel especially important. In 2020, just like today, bubbling fraud narratives predictably led a lot of people to commit crimes in service of those conspiracy theories. And now — from the January 6th insurrectionists to the false electors to Donald Trump himself — many of those people are facing criminal charges for their behavior. 

My genuine hope is that the mass challengers learn this lesson and decide not to risk committing crimes in pursuit of conspiracy theories this time around. 

But I wouldn’t say I’m optimistic…

Read the whole paper here. 

(It has lots of other good insights I didn’t cover, like state by state guides on the challenge process and many more details on the relevant laws and procedures. Dig in.)

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An important decision not to abuse presidential power

Lots to say about the president’s commitment to not use the powers of his office to pardon or commute a potential sentence for his son. True, this is all surely a difficult moment for the Biden family personally, and it’s a striking contrast with Donald Trump’s stated eagerness to abuse the pardon power. But as Grant Tudor and Amanda Carpenter remind us in Newsweek, this decision should be expected of any president:

In this case, the President's decision is notable mostly for what it is not: It is a decision not to abuse a presidential power. His commitment not to pardon Hunter Biden should be regarded as the kind of basic restraint we ought to expect from those who are entrusted to serve the people they represent—not themselves.

Read why.

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What else we’re tracking: 

• Journalists writing about political violence have their work cut out for them. How do you cover something whose goal is often to intimidate and spread fear? To lend a hand, Protect Democracy and our friends at Over Zero are collecting guidance from experts at places like the Institute for Constitutional Advocacy and Protection. Read the first in the series here. 

• Fox News poll: the top issue for American voters in 2024 is “the future of American democracy.” 68% say “extremely important.”

• I’m loving Issue One’s new solutions-focused podcast, “Democracy Fix.” Listen to the first episode here.

• A small snippet of the humans behind our election administration process, from Jen Fifield: “My first time crying in an elections building.” (If you like this briefing, you should sign up for VoteBeat’s newsletters.)

• “How to spot authoritarianism — and choose democracy.” Watch Ian Bassin’s new TED talk. Seriously, it’ll be the most useful 16 minutes of your week. (And read his advice for how to talk about democracy & authoritarianism here.)

• Another must-read Jonathan V. Last: “Why CEOs play nice with dictators.”

• Fellow Californians will know KQED’s “Political Breakdown” is one of the best politics shows on the West Coast. Grateful to Scott & Marisa for having me on yesterday’s show. 

• Democracy Journal, in partnership with Lyceum Labs and the Leading to Govern Network, has a wonderful new symposium series on “revitalizing political leadership.” The thesis: “We need Americans willing, able, and yes, excited to work as politicians, especially at the state and local level.” 

• Something’s rotten in how long it’s taking SCOTUS to decide the immunity case, writes Leah Litman. “This court has lost the benefit of the doubt for myriad reasons, including its willingness to act quickly in cases that benefit Republican interests.” (Delay clock check: 191 days!)