Threat to Your Vote More Likely to Come From U.S. Citizen Than Russia

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A temporary elections employee records votes from a ballot that a machine was not able to process at the King County Department of Elections in Renton, Washington November 7. A majority of U.S. states allow citizen poll watchers to challenge the eligibility of fellow voters. David Ryder/REUTERS

Even if you're a registered voter in Florida, your vote may not be a sure thing. That's not due to fraud or Russian hacking of electronic voting machines, but because, under state law, virtually any other voter in your county can challenge your right to vote.

In Florida, if someone believes a fellow resident is ineligible to vote, he or she can force that person to cast a provisional ballot. All one has to do is issue a challenge in writing and sign an oath. The challenger doesn't even have to provide evidence for the challenge. The burden then is on the challenged voter to prove his or her eligibility by providing written documentation within 48 hours after the election to ensure the vote is counted.

Florida isn't alone in this. While the federal government requires states to meet minimum standards for voting and voting rights protection, most of the details are left up to the states. According to a 2012 report by the Brennan Center for Justice at New York University Law School, and confirmed by data from the National Association of Secretaries of State, 39 states permit private citizens to challenge prospective voters in person on Election Day (although in many places, they have to be designated poll watchers appointed by a party or campaign), and 24 allow private citizens to challenge voters at the polls without offering any documentation to show that the voters are actually ineligible. Florida is one of the worst in terms of the ease with which it allows voter challenges, according to another watchdog group, Common Cause. But other battleground states including Iowa, Pennsylvania, Nevada and Michigan also got poor marks on this front in a report the group released in October.

In Pennsylvania, registered voters, election officers, overseers or watchers during primary or general elections are allowed to challenge a voter's identity or residence, according to the Common Cause report. And it is the responsibility of that challenged voter to provide a witness from the same election district to sign an affidavit affirming the voter's identity and/or residence. "Challenges en masse could effectively suppress votes," the report's authors warn. "It shouldn't have to be this way, but we encourage voters…to go to the polls with a friend or family member from the district."

In most election years, that would sound like an overly paranoid bit of precaution. But this year, the Republican presidential nominee has explicitly encouraged his supporters to challenge other voters. "Go down to certain areas and watch and study," Donald Trump told a crowd at a rally in Altoona, Pennsylvania in August. "Make sure other people do not come in and vote five times." In other remarks, he's singled out urban areas with large African American populations, like Philadelphia and Chicago, as places his backers should monitor for voter fraud.

In training materials disclosed as part of a poll watcher lawsuit, the Trump campaign does make clear to its volunteers that they should not engage in intimidating behavior. And it reminds them that they "generally are not permitted to challenge the qualifications of a voter" unless they, themselves, are registered voters in the precincts they are observing. The same lawsuit prompted longtime GOP operative Roger Stone, a Trump ally, to issue a list of verboten behavior for volunteers who've signed up to observe voting with the group Stop the Steal. That includes not speaking to voters or entering polling places. Another conservative group, Judicial Watch, is fielding poll monitors in Virginia "in response to significant concerns about the integrity of the election process there," according to the group's press release. But the head of the Judicial Watch monitoring program, former Department of Justice official Robert Popper, tells Newsweek: "We're not making challenges, we're not talking to voters, we are not handing out materials.… Everything about this is designed to be nonintimidating and nonthreatening."

Popper said one of the reasons the group is monitoring polls in Virginia is the "friendliness of local laws to independent observers." Some states, he noted, don't permit them—they only allow monitors appointed by the parties or campaigns. Even within Virginia, "we wrote letters to a large number of...counties and said we have volunteers and we'd like to monitor [voting locations]. And a fair percentage said no."

Voting rights advocates worry most about those states that allow such independent observers and challenges, particularly from individuals who have no official ties and haven't received any training. The Brennan Center report cited one local activist, affiliated with a voter integrity group called True the Vote, who in 2012 challenged more than 500 voters, mostly minorities, in Wake County, North Carolina. "Local election officials later dismissed almost all of these challenges for insufficient evidence," the report says.

Catherine Engelbrecht, president of the Texas-based True the Vote, insists that the American voting system needs more, not less, citizen participation to prevent fraud and error in elections. "As a whole we are concerned, there's no question that we have heard from the top of the ticket down all kinds of allegations, problems stemming from Russian hackers to rigged elections and all forms of malfeasance in between," she says. The problem is, with the exception of Russian hackers, there is no evidence behind any of these allegations, now or in the past, according to numerous studies by voting experts.

Still, the group encourages people to take election protection efforts into their own hands, offering a four-step process online that starts with a generic training video and then steers volunteers to the observer rules for their state and for state or local parties to register as observers. In 2016, True the Vote has launched a smartphone app to allow voters or observers to concerns about the polls, and the group plans to then publicize the incidents or report them to the relevant local officials, Engelbrecht says.

The Brennan Center, however, says the Wake County incident "highlights the kinds of problems that often occur when untrained private citizens seek to police access to the polls." It's been enough of a problem, in some instances, that states have actually passed laws tightening the rules on voting challenges, says Adam Gitlin, counsel for the organization. "Ohio no longer allows Election Day challenges and the movement to stop practices…was led in part by election officials."

Ohio is the only one out of 11 swing states Common Cause rated as "excellent" for its strict voter challenge laws. It rated Colorado, New Hampshire and Virginia as "good" and North Carolina as "satisfactory," based on the standards of evidence for challengesand on voters' ability to refute challenges against them. But in some of the most contested states up for grabs in 2016—Florida, Pennsylvania and Nevada—voters are much more vulnerable to challenges. And if those seeking to prevent voter fraud take advantage of those laws, it could make for a messy Election Day.