Poll workers: gatekeepers of the democratic process

By Amy Luong
Associate Editor, Vol. 21
Production Editor, Vol. 22

March marked an increased number of states that began imposing Voter ID requirements among other voting prerequisites.[1] In 2013, the Supreme Court declared the coverage formula, § 4(b) of the Voting Rights Act (VRA), unconstitutional in Shelby Cty. v. Holder.[2] Originally, the formula covered jurisdictions that maintained a test or device as a prerequisite to voting, and where voter turnout was less than 50 percent of eligible voters as of 1964.[3] The coverage formula was amended twice to cover jurisdictions where the same issues existed and persisted as of 1968 and 1972.[4] Striking down § 4(b) essentially nullified § 5, which required covered jurisdictions to obtain federal approval before the covered jurisdiction would be allowed to change their election laws.[5]

There are two main arguments for Voter ID laws. First, to prevent voting fraud and thus safeguard the integrity of the democratic process.[6] Second, the idea of “one person, one vote,” to ensure a meaningful ballot.[7] However, critics of Voter ID laws cite the insignificance or even nonexistence of voting fraud, attributing any such accounts to sloppy record-keeping.[8] Although neutral on their face, these laws disproportionately impact “low-income individuals, racial and ethnic minority voters, students, senior citizens, voters with disabilities and others who do not have a government-issued ID or the money to acquire one.”[9]

The Election Assistance Commission (EAC) assists local election officials with the administration of Federal elections, which includes recruiting, training, and retaining poll workers.[10] Poll workers are individuals who have been selected based on certain legal criteria, and are usually paid a stipend for their time.[11] The criteria varies depending on the state, but commonly involves an age minimum and citizenship.[12] In addition, the nomination process for poll workers varies by state and/or county.[13] Generally, poll workers will also attend a short training session or review materials related to their duties. A poll worker’s main duty includes checking the ID’s validity, and determining if the bearer’s ID matches the permissible form of ID. States set out specific guidelines on what qualifies as a valid ID, but a poll worker is generally the person making the immediate decision. Thus, poll workers become gatekeepers to the electoral process, an immense task for which they may have received only very limited training. And yet, they are given wide latitude in determining whether an ID is actually permissible.

Although there is an emphasis on the importance of voter ID requirements to prevent fraud, in some states if two poll workers can vouch for you, then you may vote without an ID. Additionally, as in one instance in Virginia, voters who do not have an ID and still attempt to vote could be permitted to vote on a provisional ballot, but the ballot would only count if the voter later obtains a valid photo ID and produces it to the county clerk or circuit court clerk’s office.[14] However, the former will only occur if poll workers are aware that provisional ballots exist, and we do not have such a well-trained group of volunteers who can provide such guidance at all polling locations. According to an EAC survey, 5,938 provisional ballots were not counted in 2006 because voters did not provide acceptable identification.[15] Thus leading to situations, similar to that of Ms. Meghan Cotten:

Another witness, Meghan Cotten of Arlington, said she was not even offered a provisional ballot after being told that her Alabama driver’s license was not a valid form of ID under the Virginia law. Cotten, a 32-year-old public relations representative, said people turned and stared after a poll worker loudly expressed surprise that she did not have a passport. “It was pretty humiliating, to be honest,” Cotten said. “It was very hard to be singled out.” She left without voting.[16] 

The variance in voting laws and procedures have led to inaccurate statements even by officials disseminating this information,[17] whether intentional or not. If local agencies tasked with interpreting these guidelines are confused, then the actual law must be exponentially more unclear to poll workers, because the exceptions to the commonplace driver’s license or passport are so obscure.

When election laws change or any type of policy changes occur, usually a select group—policymakers, and agencies and organizations related to the changes—are the first to know. This group will attempt to disseminate the information to the public. Even though the information is made public, only a limited number of people will know about and understand the policy changes. Those people, often journalists or academics, disseminate information to a broader group, which is then passed on to the general population. However, the relevant details attached to this information do not reach those who are most likely impacted, and thus the dissemination process fails to help voters realize their full rights and options available. Even if those impacted are fully informed, people who are part of the process in enforcing the policy change become barriers when they themselves are uninformed and ill-equipped to handle issues that may arise.

So, although these voter ID laws may not facially discriminate against anyone in particular, their burden disproportionately falls on economically and socially disadvantaged persons, because these persons are less likely to be fully informed about their full rights. One can also imagine that there are people hoping to capitalize on this imperfect network of information to skew the democratic process in their favor.

What can be done?

Although removing voter ID requirements would be the quickest way to dissolve this barrier, this is not an option within our immediate future. Instinctively, we might want to increase monetary incentives to retain or attract prior volunteer poll workers, but this option is also not sustainable because of limited financial resources. Alternatively, employing a systematic method to retain names of prior volunteers, recruiting those same volunteers, then pairing an experienced volunteer with a newer volunteer could help alleviate some of the barriers to this imperfect knowledge network.

The right to vote should not be dependent upon who you meet at the polling place, nor who you will meet after to enforce those rights. If States want to impose these voter ID laws, they need to put in more than a good faith effort to inform voters of their full rights, especially if these persons could potentially be denied the opportunity to cast a meaningful ballot. This means thorough attempts to clarify policies, educate poll workers on issue resolutions, and standardize volunteer poll working training across the State. Most importantly, States must reach out to the people actually affected by these policies. The information must be disseminated in ways that all parties to the voting process can understand, such as by holding workshops or town hall meetings, especially for those who are delegated powers to regulate the electoral process.

For further information about how poll workers affect the voting process, please see Barriers to the Ballot Box: Implicit Bias and Voting Rights in the 21st Century, authored by Arusha Gordon and Ezra D. Rosenberg in Volume 21.1 of the Michigan Journal of Race & Law.[18]

[1] 16 States Face New Voting Restrictions, Democracy Now (Feb. 29, 2016), http://www.democracynow.org/2016/2/29/16_states_face_new_voting_restrictions.

[2] Shelby Cty. v. Holder, 133 S. Ct. 2612, 2631 (2013). In 1970, the Voting Rights Act was amended to ban all literacy tests nationwide.

[3] 52 USCS § 10303(b).

[4] “On and after August 6, 1970, in addition to any State or political subdivision of a State determined to be subject to subsection (a) pursuant to the previous sentence, the provisions of subsection (a) shall apply in any State or any political subdivision of a State which (i) the Attorney General determines maintained on November 1, 1968, any test or device, and with respect to which (ii) the Director of the Census determines that less than 50 per centum of the persons of voting age residing therein were registered on November 1, 1968, or that less than 50 per centum of such persons voted in the presidential election of November 1968. On and after August 6, 1975, in addition to any State or political subdivision of a State determined to be subject to subsection (a) pursuant to the previous two sentences, the provisions of a subsection (a) shall apply in any State or any political subdivision of a State which (i) the Attorney General determines maintained on November 1, 1972, any test or device, and with respect to which (ii) the Director of the Census determines that less than 50 per centum of the citizens of voting age were registered on November 1, 1972, or that less than 50 per centum of such persons voted in the Presidential election of November 1972.” Id.

[5] 52 USCS § 10303(a)(5).

[6] Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 194-97 (2008).

[7] Reynolds v. Sims, 377 U.S. 533, 557-58 (1964).

[8] Crawford, 553 U.S. at 195; Glenn Kessler, The Case of ‘Zombie’ Voters in South Carolina, The Washington Post (Jul. 25, 2014), https://www.washingtonpost.com/blogs/fact-checker/post/the-case-of-zombie-voters-in-south-carolina/2013/07/24/86de3c64-f403-11e2-aa2e-4088616498b4_blog.html.

[9] Oppose Voter ID Legislation, ACLU, https://www.aclu.org/oppose-voter-id-legislation-fact-sheet (last visited February 29, 2016).

[10] “The EAC empowered by the Help America Vote Act (HAVA) is charged with creating voting system guidelines and operating the federal government’s first voting system certification program. EAC is also responsible for maintaining the National Voter Registration form, conducting research, and administering a national clearinghouse on elections that includes shared practices, information for voters and other resources to improve elections. HAVA requires that the states implement the following new programs and procedures: provisional voting, voting information, updated and upgraded voting equipment, statewide voter registration databases, voter identification procedures, and administrative complaint procedures.” Help America Vote Act, U.S. Election Assistance Commission, http://www.eac.gov/about_the_eac/help_america_vote_act.aspx (last visited Mar. 26, 2016).

[11] See Compendium of State Poll Worker Requirements, U.S. Election Assistance Commission (Aug. 2007), http://www.eac.gov/assets/1/Page/Poll%20Worker%20Requirements%20by%20State.pdf.

[12] Id.

[13] Id.

[14] Larry O’Dell, Trial Begins on Lawsuit Challenging Virginia Voter ID Law, ABC News (Feb. 22, 2016), http://abcnews.go.com/US/wireStory/trial-begin-lawsuit-challenging-virginia-voter-id-law-37111697.

[15] Counting and Casting Provisional Ballots, Election Assistance Commission (2006), http://www.eac.gov/assets/1/AssetManager/2006%20EAVS%20Casting%20and%20Counting%20Provisional%20Ballots.pdf.

[16] Id.

[17] Logan Graham, I Tried To Get A Voter ID Card, Here Is What Happened, Technician Online (Mar. 1, 2016), http://www.technicianonline.com/opinion/article_5cac73d2-db75-11e5-8921-036c6bef3d9d.html.

[18] Arusha Gordon & Ezra D. Rosenberg, Barriers to the Ballot Box: Implicit Bias and Voting Rights in the 21^st Century, 21 Mich. J. Race & Law, 23 (2015).