08/31/2012 02:34 pm ET Updated Oct 31, 2012

Voter Intimidation Not New at the Polls

On the morning of her first election, Florence Chauncey woke up early. The town of Lisle, NY, was voting that day to decide whether it would permanently ban the sale of alcohol -- a growing fad in those days -- and Mrs. Chauncey was eager to cast her ballot for the "drys." When she arrived at the village hall, however, just before the polls opened at 6 a.m., she was greeted by the local tavern keeper and his lawyer, who promptly challenged her ballot.

Their reason for the challenge? They believed women were not qualified to vote.

Fortunately, their challenge was rejected and Mrs. Chauncey became the first woman ever to cast a legal ballot in New York. The year was 1918 and the state's new women's suffrage law had just gone into effect. Though the tavern keeper knew about the law (and likely realized that he had no legal leg to stand on), he nevertheless went on to contest the vote of every woman who sought to participate in that historic election -- a last-ditch effort to block an evolving democracy's march toward equality.

American elections have come a long way since then. Voter rolls are now digitized, suffrage restrictions based on race and sex have disappeared, and presidential nominees are no longer chosen by party bosses in smoke-filled rooms. But, despite these advances, one relic from that era still haunts voters today: laws that allow private citizens -- like Lisle's disgruntled tavern keeper -- to challenge voters at the polls.

Thirty-nine states allow private actors to contest a voter's eligibility inside the polling place on Election Day. While most of these "challenger laws" date back to at least the 19th century, they have garnered increased attention in recent years. Growing armies of poll-watchers have sought to use these archaic provisions to block voters' access to the ballot box. Over the past decade, poll challengers have often targeted certain groups of voters -- typically voters of color, university students, and voters with disabilities. These efforts have disrupted elections and prompted several voting rights lawsuits. Just this year, in fact, a federal appeals court upheld a consent decree explicitly barring the Republican National Committee from using challengers to intimidate voters in communities of color.

The rise of the tea party has also sparked a renewed interest in these antiquated laws, particularly in recent months. Local tea party groups in dozens of states have been recruiting volunteers to police the polls and one national organization, a Houston-based group called True The Vote, has even announced a plan to train one million poll-watchers for this fall's election.

While these efforts are ostensibly meant to prevent voter fraud, history reveals that many states' challenger laws were originally enacted -- and often used -- for more nefarious purposes. Virginia, for instance, enacted its first challenger law in the immediate wake of Reconstruction as part of a concerted effort to suppress the vote of newly freed former slaves. The law was passed alongside other well-known tools of black disenfranchisement, such as poll taxes and literacy tests, and white citizens routinely used it to block black Virginians from the polls.

Other southern states followed a similar path. Texas amended its challenger law repeatedly to hinder black political participation during the Jim Crow era as did Florida and North Carolina. Northern states, like Ohio and Minnesota, also amended their challenger statutes in the late 19th century to suppress the vote of their growing urban African-American populations. In the west, meanwhile, these laws often targeted other marginalized groups. Arizona's challenger statute, for example, was amended in 1912 to permit challenges based on English literacy -- a move aimed at Mexican-American voters -- and Idaho's challenger law was routinely used against Mormons.

Given this troubling history, it is not surprising that challengers are still used to delay, intimidate, and suppress voters today. Allowing untrained private citizens to contest voters' qualifications at the polls, often without any evidentiary support, only invites the kinds of disruptions that delayed Florence Chauncey's historic vote nearly a century ago. Thus, while we must always fight back against new attacks on the franchise -- like the strict voter ID laws of recent years -- we must be equally vigilant in resisting long-standing threats to our voting rights. Otherwise, the ghosts of our past will continue to impede our democracy's ongoing march forward.

Nicolas Riley served as Counsel and Fellow in the Democracy Program at the Brennan Center for Justice. He is the author of a forthcoming Center report, "Voter Challengers."