SLAPPing Down Discriminatory Voter Fraud Prosecutions: A Possible Solution to a Problem that Threatens to Chill Participation in Elections
By: Sam Cleveland, Volume 103 Staff Member
A sinister new trend in discriminatory prosecution of alleged voter fraud has compounded other problems which already make it difficult for many Americans. Unlike many other countries, election day in the United States is not a public holiday, meaning many do not have time to vote. Even if a potential voter does have enough time, he or she may run into other obstacles to casting a ballot such as requiring photo identification to vote, linguistic barriers, or not having registered in time. Lack of transportation, inconvenient polling place locations, and misinformation are some other significant barriers to voting. Finally, one trying to cast a ballot may have to wait hours in line to do so, and once they are at the polling place, they may face harassment, especially if they are a minority. These factors represent a huge hurdle to vote for a lot of Americans. And if these restrictions and inconveniences are not enough to tip the scales towards voters steering clear of the polling place, casting a vote may now expose a voter to risk of criminal prosecution, even for a small, innocent mistakes.
In the past few years, there have been increasingly more criminal prosecutions for alleged voter fraud. While maintaining public confidence in our electoral system is a critically important interest,most evidence suggests that voter fraud is incredibly rare, at best.Many of the cases that have been brought and prosecuted have been against minorities, which begs the question as to what the true motivation behind these suits is. As explained below, considering other attacks on voting rights in states where discriminatory voter fraud prosecutions are happening, it is not unreasonable to suggest that an intent to chill participation in government is behind most of these prosecutions. After all, why go vote if you know you’ll be opening yourself up to being criminally charged if you make a minor infraction of voting protocol? In a time when voting rights are under attack from various branches of government, it is crucially important to ensure that state attorney general offices do not become another force behind voter suppression. States that have been using voter fraud prosecution have so far only been a few bad apples. In order to protect voting rights, voting rights advocates must find ways to curtail discriminatory and intimidating voter fraud prosecutions in these states and to ensure that no other states adopt such tactics.
This post traces some of the history behind minority voter suppression and discriminatory prosecution. It then illuminates the present problem of discriminatory voter fraud prosecution. Finally, this post proposes using anti-SLAPP statutes as a way to curtail these prosecutions.
In order to illuminate the issue addressed in the remainder of this essay, the following section will examine the history of the suppression of minority votes, the history of legal challenges to discriminatory application of laws, the present state of discriminatory prosecution, and voter fraud laws.
A. History of Racist Voter Suppression
America has a long history of suppressing the votes of people of color. Before the Fifteenth Amendment was ratified in 1870, the ability of African American to vote was seriously curtailed. By 1850 blacks were unable to vote in 25 of the 31 states. After being ratified by the states, the Fifteenth Amendment, which prohibits denying one the right to vote based on race, was certified by Secretary of State Hamilton Fish on March 30, 1870.
The passage of the Fifteenth Amendment, however, did not put an end to the practice of states discriminating against black voters. The means by which states prevented blacks from voting varied, but the insidious effect of suppressing black votes remained the same. Many states instituted poll taxes or literacy test, both of which had the effect of denying blacks the right to vote. Such means of discouraging blacks from voting were ruthlessly effective. In Mississippi, only about six percent of eligible blacks were registered to vote in 1890.
Private citizens were equally effective in their efforts to stymy the ability of blacks to vote. In the wake of the Fifteenth Amendment, private citizens, many of whom were associated with the Ku Klux Klan (KKK), used violence and intimidation in attempts to suppress the black vote. Through these practices, African Americans, especially in the South, lost their voice in government and had little influence in their communities.[18
B. History of Legal Challenges to Discriminatory Application of Laws
Due in part to the number of laws and the frequency with which they are broken, not every violation of a law can be punished. Not surprisingly, litigation often results from discriminatory enforcement of laws. The first such case to make it to the Supreme Court was Yick Wo v. Hopkins. Yick Wo was a Chinese owner of a laundry business in San Francisco. The city passed an ordinance requiring laundry businesses to obtain the consent of the city board of supervisors. Yick Wo alleged that this ordinance was applied discriminatorily, as about 150 Chinese nationals had been arrested under the ordinance, while approximately eighty Caucasian laundry owners continued their business without being bothered. The Supreme Court granted Yick Wo’s habeas petition, reasoning that while the law was “impartial in appearance”, it conferred “a naked and arbitrary power to give or withhold consent.” The Court found the application of the law unconstitutional, saying
Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.
Yick Wo may have been a high-water mark of sorts for discriminatory enforcement case law. Subsequent cases “introduced distinctions and problems of proof” which “indicate[d] the power of an unsympathetic court to eviscerate the Yick Wo remedy.”
The first time the Supreme Court addressed prosecutorial discrimination was in 1962 in Oyler v. Boles. In Oyler, two prisoners challenged a West Virginia habitual criminal statute which required a mandatory life sentence upon the third conviction of certain crimes.The prisoners alleged that this law had been enforced only against a fraction of those who would be punishable under it. Despite this possibility of arbitrary enforcement, the Court rejected the challenge because the prisoners had failed to show anything more than mere lack of knowledge of the other people who the state would be able to prosecute under this statute. The Court went on to say that “the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation” and in this case “it is not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.” For this reason, the Court found no denial of equal protection.
Often, some of the hardest cases to bring are those “in which the person arrested for engaging in conduct normally only passively enforced alleges that he has been invidiously singled out.” Cases where individuals are prosecuted for voter fraud would often fall within this category. Plaintiffs in these cases are often required to show “intentional or purposeful discrimination,” a requirement that is “disastrous in all but a few cases.” A case that illustrates this problem is Village of Arlington Heights v. Metropolitan Housing Development Corporation, where rezoning that merely resulted in racially disproportionate impact was insufficient absent a showing of discriminatory intent. Often, these cases either “pay lip service” to this requirement or refuse to follow it at all, intimating that no measure of proof of discrimination would be sufficient to support the allegation. Even when a conclusory allegation has been found to be sufficient to move the case forward, the burden of persuasion proves to be too high of a standard to meet. The pleading standard from Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal make bringing a claim of prosecutorial discrimination even more difficult.
Ideally, decisions to prosecute would be made without reference to immutable characteristics of the offender, but clearly this is not the world we live in. Research shows that white defendants are more likely to have the charges against them dropped or reduced compared to minority defendants. An offender’s race has been shown to play a significant role in the “prosecutor’s choice to file a charge or pursue a full prosecution,” even in jurisdictions that would be considered more progressive.
An unnerving and unsavory trend has been emerging in voter fraud prosecutions. One example of this trend is the case of Lula Smart. Smart, a resident of Brooks County, Georgia, a place with a dubious history of race-based violence, sought to break what had until then been an all-white school board and elect African-American candidates.
However soon after the election a dozen organizers, all black, were indicted for more than one hundred election law violations. One of these activists was Lula Smart, who faced thirty-two felony counts that could have carried more than one hundred years in prison. Smart said she considered committing suicide while being prosecuted.One hearing about these charges may expect the basis of the charges to be quite serious and highly threatening to a stable, functioning democracy. This is not the case; the basis of the charges was transporting absentee voters’ ballots to the mailbox for them. Smart was eventually acquitted, but she still paid the price for trying to vote.
Other similar examples of these type of malicious, discriminatory voter fraud prosecution abound. Many believe that these prosecutions are “just a method to suppress voter turnout and to quiet strong voices in the black community.”
While strict comparisons between the actions of prosecutors in different jurisdictions is inappropriate, it is interesting to compare these cases of alleged voter fraud prosecution with a case where the district attorney refused to press charges. In 2016, a 67-year-old North Carolina woman impersonated her recently-deceased mother in order to vote twice for Donald Trump for president. The District Attorney, David Learner, refused to prosecute the woman, citing compassion and excusing the woman’s double vote since “[having her daughter vote for Trump] was her mother’s last request.” The woman’s action in this case could, viewing them as generously as possible, be described as the same sort of innocent mistake made by Smart and others. It is hard to imagine Smart being treated with similar compassion and generosity.
Although hard to prove, it certainly seems as though the intent of many of these prosecutions is not to preserve the integrity of elections, but rather to intimidate communities of color from voting. By almost all accounts, voter fraud is not a real problem. In light of this knowledge, the history of intimidation and suppression of voters of color, and the minor infractions that are being prosecuted, it is not hard to make the inference that the purpose of these prosecutions is to scare minority voters away from the polls. Relentlessly prosecuting minor infractions at the polling place sends the same message to minority voters as the Ku Klux Klan warnings did in the 1920s: vote at your own risk. Prosecutors are signaling to communities of color that even the slightest irregularity with your ballot or with your conduct at the polling place will expose you to a possible criminal trial. The calculus on the potential voter’s part is clear: take time off work, travel to your polling place, which may be purposively inconveniently located, obtain a photo identification and risk opening yourself up to criminal prosecution, or just stay home.
While it is not clear that discriminatory prosecution of alleged voter fraud is currently a widespread issue, if it successfully suppresses minority turnout, it is hard to imagine that other jurisdictions that desire to suppress minority participation would not follow suit. As such, it is critical to address the problem and find solutions at this early stage in order to stop the spread of discriminatory prosecution. Voting represents a fundamental element of our system of government.Protecting this right means finding ways to ensure wide access to the vote and to prohibit attempts to intimidate potential voters. There are surprisingly few avenues through which to combat this issue. Section 1983 claims would perhaps be a solution, but prosecutors are typically immune from such suits. Bringing a constitutional claim of violation of due process or equal protection would be appealing, but the requirement to show discriminatory intent serves to all but eliminate this avenue. Legislatures could limit prosecutorial discretion to prevent such discriminatory enforcement, but again, this is unlikely. Thus, an effectual and lasting solution to the problem of discriminatory voter fraud prosecution one must come from elsewhere.
D. USING ANTI-SLAPP AS A DEFENSE TO DISCRIMINATORY PROSECUTION
Such a significant and potentially chilling problem like the one outlined above deserves a clear and effective solution. Unfortunately, few such solutions exist. To eliminate these discriminatory prosecutions and deter them from being brought in the future, defense lawyers must get creative. One such way to do this is by using anti-SLAPP laws to combat against these prosecutions.
A strategic lawsuit against public participation (SLAPP) is a lawsuit intended to chill participation in matters of public significance.Although SLAPPs are often baseless, they are nevertheless often effective in having a chilling effect on speech due to the inconvenience and cost associated with defending oneself form these baseless claims in court. One notable example of SLAPP suits is the string of meritless cases filed by the Church of Scientology in order to punish speech and speakers critical of the religion. Considering the chilling effect on speech these SLAPP suits may have, more than half of U.S. states and territories have enacted anti-SLAPP laws. These anti-SLAPP laws typically have the purpose of “encourag[ing] and safeguard[ing] the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by the law.” These state laws usually allow the victim of a SLAPP to file a motion to dismiss, which, in some states, freezes discovery. While SLAPPs suits are typically brought against people who speak out on an issue or call public attention to something, anti-SLAPP laws could provide one form of relief from discriminatory prosecution of voter fraud.
Many state anti-SLAPP laws are worded broadly to protect participation in government and show an intent of the legislature for the statute to be broadly construed. Illinois’s anti-SLAPP statute covers all suits that may threaten “the moving party’s rights of petition, speech, association, or to otherwise participate in government”.The California law’s purpose is “to encourage continued participation in matters of public significance.” Some states, however, have narrowed anti-SLAPP laws, such as Georgia, which limits the coverage of protected statements to a rather narrow set of statements.
Whether discriminatory voter fraud prosecutions would fall within the scope of an anti-SLAPP law would primarily depend on the wording of that state’s law. If the wording does not foreclose the possibility, it would secondarily depend on how broadly state courts would be willing to read the state’s anti-SLAPP statute. As discussed above, some state’s anti-SLAPP laws would appear not to include a claim that a discriminatory prosecution of voter fraud as a SLAPP. For these states where use of an anti-SLAPP statute is limited to discussions about a public issue in a governmental forum, it is unlikely that judges would stretch this language to include voting. However, in a jurisdiction where the anti-SLAPP statute was broader, however, there is a better chance that a discriminatory prosecution would be included. Take Illinois’s statute, for instance, which includes suits that threaten the movant’s right to participate in government. The act of voting would seem to fit naturally within the phrase “participate in government.” Thus, discovery would be frozen during the pendency of this motion, and if it were successful, the case would be thrown out.
There are some significant limitations to this approach. First, not every state has an anti-SLAPP law. Victims of discriminatory voter fraud prosecution in states like Ohio, North Carolina, and Michigan would not be able to stave off prosecution using this method. Another critical limitation is that some states that do have anti-SLAPP laws explicitly exclude the use of the anti-SLAPP provision against any enforcement action by the state attorney general or any district or city attorney. The presence of such provision would quite clearly preclude the usage of an anti-SLAPP law to combat a discriminatory prosecution. Finally, the usage of anti-SLAPP provisions is typically only available where the SLAPP is wholly baseless. Although Illinois appears to have a broad anti-SLAPP law, their state Supreme Court made clear that it may only be employed when the plaintiff’s lawsuit is “solely based on, related to, or in response to the acts of defendants in furtherance of the rights of petition and speech.” This language would seemingly preclude the use of the anti-SLAPP law when there is at least some legitimate basis for the lawsuit. Although there is a bill that would expand the scope of protection under this statute, the types of voter fraud prosecution at issue here may not be covered. While they appear to be almost exclusively innocent, harmless mistakes, there are voting irregularities at the heart of most of the cases of prosecution. Although the primary motive of those bringing the suits seems to be to harass and intimidate, the suits are not wholly basis, as may be required for the defendants to be shielded by anti-SLAPP laws.
In conclusion, attempting to use anti-SLAPP provisions could be successful in some cases, but it appears to be seriously narrowed by several limitations.
- See Jacey Fortin, Why Only Some Workers Get Time Off to Vote on Election Day, N.Y. Times (Nov. 6, 2018), https://www.nytimes.com/2018/11/06/us/politics/election-day-holiday.html. ↑
- See National Conference of State Legislatures, Voter Identification Requirements, http://www.ncsl.org/research/elections-and-campaigns/voter-id.aspx. ↑
- See Terry Ao Minnis & Adam Ambrogi, The Language Barrier in the Voting Booth, Governing (Mar. 28, 2016), http://www.governing.com/gov-institute/voices/col-improved-language-assistance-voters.html. ↑
- See Hayley Miller, Voter Registration Deadlines by State, Explained, Huffington Post (Oct. 9, 2018, 3:12 PM), https://www.huffingtonpost.com/entry/voter-registration-deadlines-2018-midterms_us_5bbcdf43e4b0876edaa28d19. ↑
- Cf. Mark Nichols, Closed Voting Sites Hit Minority Counties Harder for Busy Midterm Elections, USA Today (Oct. 30, 2018), https://www.usatoday.com/story/news/2018/10/30/midterm-elections-closed-voting-sites-impact-minority-voter-turnout/1774221002; Sam Sturgis, Could Free Public Transit Get Americans to Voting Booths?, Citylab (Nov. 3, 2014), https://www.citylab.com/transportation/2014/11/will-free-public-transit-get-americans-to-voting-booths/382199/. ↑
- Id. ↑
- Wired Staff, Alert: Track Midterm Election Day Misinformation Right Here, Wired (Nov. 6, 2018 9:30 PM), https://www.wired.com/story/midterm-elections-2018-misinformation-voting-hoaxes/. ↑
- See e.g., Anna North, Why Long Lines at Polling Places Are a Voting Rights Issue, Vox (Nov. 6, 2018, 4:10PM), https://www.vox.com/2018/11/6/18068506/midterm-election-voting-lines-new-york-georgia; Erik Ortiz et al., Midterms 2018: Voters Face Malfunctioning Machines and Long Lines at Polls Across Country on Election Day, NBC News (Nov. 6, 2018, 12:34 PM), https://www.nbcnews.com/politics/elections/midterms-2018-voters-face-malfunctioning-machines-long-lines-polls-across-n932156; Katherine Krueger, Long Lines to Vote Are a Sign Democracy Isn’t Working, Splinter News (Nov. 6, 2018 1:12 PM), https://splinternews.com/long-lines-to-vote-are-a-sign-democracy-isnt-working-1830256325. ↑
- Vann R. Newkirk, Voter Supression is Warping Democracy, The Atlantic (July 17, 2018), https://www.theatlantic.com/politics/archive/2018/07/poll-prri-voter-suppression/565355/. ↑
- Burson v. Freeman, 504 U.S. 191, 199 (1992) (citing Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214, 231 (1989). ↑
- Justin Levitt, Brennan Center for Justice, The Truth About Voter Fraud (2007). ↑
- See e.g., Shelby Cty. v. Holder, 570 U.S. 529 (2013); Mark Niesse, Kemp Defends Georgia’s ‘Exact Match’ Voter Registration Law, Atlanta J. Const. (Aug. 6, 2018), https://www.ajc.com/news/state–regional-govt–politics/kemp-defends-georgia-exact-match-voter-registration-law/tuzifo37vnhJQn5ja0oUYI/. ↑
- See e.g., Phillip Bump, The Long History of Black Voter Suppression in American Politics, Wash. Post. (Nov. 2, 2016), https://www.washingtonpost.com/news/the-fix/wp/2016/11/02/the-long-history-of-black-voter-suppression-in-american-politics/?noredirect=on&utm_term=.b851b797b365. ↑
- The black voters in the six states where they could vote accounted for only four percent of free blacks in the country at that time. Id. ↑
- Id. ↑
- Kelly Phillips Erb, For Election Day, A History of the Poll Tax in America, Forbes (Nov. 5, 2018), https://www.forbes.com/sites/kellyphillipserb/2018/11/05/just-before-the-elections-a-history-of-the-poll-tax-in-america/#562f1cf4e440. ↑
- Garrett Epps, The Klan Act: How an Obscure Law Could Cut Down on Bullying at the Polls, The Atlantic (Oct. 9, 2012), https://www.theatlantic.com/national/archive/2012/10/the-klan-act-how-an-obscure-law-could-cut-down-on-bullying-at-the-polls/263374/. ↑
- Constitutional Rights Foundation, Race and Voting in the Segregated South, http://www.crf-usa.org/black-history-month/race-and-voting-in-the-segregated-south. ↑
- Yick Wo v. Hopkins, 118 U.S. 356 (1886). ↑
- Id. at 365. ↑
- Id. at 373. ↑
- Joseph H. Tieger, Police Discretion and Discriminatory Enforcement, 1971 Duke L.J. 717 (1971). ↑
- 386 U.S. 448 (1962). ↑
- Id. ↑
- Id. at 456. ↑
- Id. ↑
- Tieger, supra note 28, at 736. ↑
- Id. ↑
- Id. ↑
- 429 U.S. 252 (1977). ↑
- Id. ↑
- Id. at 736–37. ↑
- Id. at 739. ↑
- 550 U.S. 544 (2007). ↑
- 556 U.S. 662 (2009). ↑
- Cf. Suja A. Thomas, Oddball Iqbal and Twombly and Employment Discrimination, 2011 U. Ill. L. Rev. 215, 219–23 (citing Richard A. Epstein, Of Pleading and Discovery: Reflections on Twombly and Iqbal with Special Reference to Antitrust, 2011 U. Ill. L. Rev. 187) (explaining the difficulties in bringing employment discrimination claims post-Iqbal). ↑
- Rhonda Brownstein, Are There Limits to Prosecutorial Discretion?, S. Poverty L. Ctr. (Jan. 1, 2003). ↑
- Jawjeong Wu, Racial/Ethnic Discrimniation and Prosecution: A Meta-Analysis, 43 Crim. Just. Behav. 437, 450 (2016). ↑
- Besiki Kutateladze, Whitney Tymas & Mary Crowley, Race and Prosecution in Manhattan, Vera Inst. Just. (2014). ↑
- Christopher C. Meyers, “Killing Them by the Wholesale”: A Lynching Rampage in South Georgia, 90 Ga. Hist. Q. 214 (2006). ↑
- Ariel Hart, Voting Case Mirrors National Struggle, Pol. Ga. (Dec. 13, 2014, 12:00 AM), https://politics.myajc.com/news/state–regional-govt–politics/voting-case-mirrors-national-struggle/seFGcSydGzV2IxD6DcyiVK/. ↑
- Spencer Woodman, Register Minority Voters in Georgia, Go to Jail, New Republic (May 5, 2015), https://newrepublic.com/article/121715/georgia-secretary-state-hammers-minority-voter-registration-efforts. ↑
- Id. ↑
- Id. ↑
- Ariel Hart, Georgian Stung by Voter Law Gets Elected, Atlanta Journal-Constitution (Jan 4, 2016), https://www.ajc.com/blog/investigations/georgian-stung-voter-law-gets-elected/UUdXYx3OXtcpm5ZTaceKGO/. ↑
- Joel Anderson, A Georgia Grandmother Faced Charges After She Helped a Black Voter, BuzzFeed (Apr. 4, 2017, 10:35 AM), https://www.buzzfeednews.com/article/joelanderson/this-is-what-happened-when-a-georgia-grandmother-went-on. ↑
- Id. ↑
- DA Cites “Compassion” for Not Prosecuting Voter Fraud Case, Morgonton News Herald (Apr. 26, 2017), https://www.morganton.com/news/da-cites-compassion-for-not-prosecuting-voter-fraud-case/article_766b15cc-2ad8-11e7-abfa-8f9665252d92.html ↑
- Id. Learner, in his campaign materials, describes himself as a “very conservative Christian” and a Republican who believes “our country has strayed far from the Judeo-Christian principles of our forefathers”. http://votelearner.com/. ↑
- See e.g., Levitt, supra note 12; Christopher Famighetti, Douglas Keith & Myrna Perez, Noncitizen Voting: The Missing Millions (May 5, 2017), https://www.brennancenter.org/sites/default/files/publications/2017_NoncitizenVoting_Final.pdf; Phillip Bump, There Have Been Just Four Documented Cases of Voter Fraud in the 2016 Election, Wash. Post (Dec. 1, 2016), https://www.washingtonpost.com/news/the-fix/wp/2016/12/01/0-000002-percent-of-all-the-ballots-cast-in-the-2016-election-were-fraudulent/?noredirect=on&utm_term=.b5c70b0d52c5; Lorraine C. Minnite, The Myth of Voter Fraud (2010). ↑
- “A man without a vote is a man without protection.” This quote is commonly attributed to Lyndon B. Johnson. ↑
- Imbler v. Pachtman, 424 U.S. 409, 427 (1976). See also Van de Kamp v. Goldstein, 555 U.S. 335 (2009). ↑
- See e.g. Wayte v. United States, 470 U.S. 598, 608 (1985). ↑
- See Kathryn W. Tate, California’s Anti-SLAPP Legislation: A Summary of and Commentary on Its Operation and Scope, 33 Loy. L.A. L. Rev. 801 (2000). ↑
- SLAPP Back, On the Media, WNYC (Apr. 2, 2010), https://www.wnycstudios.org/story/132735-slapp-back. ↑
- See e.g., Church of Scientology v. Wollersheim, 42 Cal. App. 4th 628 (1996). ↑
- Digital Media Law Project, State Law: SLAPPs, http://www.dmlp.org/legal-guide/state-law-slapps. ↑
- Tex. Civ. Prac. & Rem. Code. § 27.002. ↑
- See e.g., 735 Ill. Comp. Stat. 110/20. ↑
- 735 Ill. Comp. Stat. 110/15 (emphasis added). ↑
- Cal. Civ. Proc. Code § 425.16. ↑
- Ga. Code Ann. § 9-11-11.1. See also Ariz. Rev. Stat. § 12-752. This statute has been interpreted to be as narrow as it seems on its face; statements made criticizing a nursing home for providing inadequate treatment to disabled adults was found to not be within the statutory language as it did not relate to an official government proceeding. Berryhill v. Georgia Support & Solutions, Inc., 638 S.E.2d 278 (Ga. 2006). ↑
- These are only the top three most populous states without an anti-SLAPP law. In total, twenty-two states do not currently have anti-SLAPP laws. ↑
- See Cal. Civ. Proc. Code § 425.16(d). ↑
- Sandholm v. Kuecker, 962 N.E.2d 418, 434 (Ill. 2012). ↑
- H.B. 5162, 100th Gen. Assembly, (Ill. 2018). ↑