Voter intimidation is a recurrent problem that, like so many other aspects of our election system, provokes sharply polarized reactions along party lines. Of particular current interest are the activities of Tea Party-affiliated groups like True the Vote that ostensibly seek to promote electoral integrity but, in the eyes of critics, threaten to intimidate racial minorities, students, and other Democratic-leaning voters.

Ben Cady and Tom Glazer expose underutilized tools that might be brought to bear against contemporary voter intimidation in their recent article Voter Strike Back: Litigation Against Modern Voter Intimidation, 39 N.Y.U. REV. L. & SOC. CHANGE 177 (2015). Of particular interest is Section 11(b) of the Voting Rights Act (“VRA”), which prohibits intimidating, threatening, or coercing voters. Cady and Glazer argue that this statute was designed to dispense with any requirement of intent, including both racially discriminatory intent and an intent to intimidate.

Although Cady and Glazer’s statutory interpretation is persuasive, it raises thorny constitutional questions. There are two distinct constitutional difficulties. The first is the scope of Congress’s power. Most applications probably fall within the scope of congressional power under the Fourteenth Amendment, the Fifteenth Amendment, or the Elections Clause, but its constitutionality is doubtful with respect to purely private actors in purely state and local elections. The second difficulty is that some applications might violate First Amendment rights. The statute is constitutional as applied to election officials and private parties who intentionally intimidate voters with threats of violence, but statements by private persons that are not intended to threaten violence are more problematic. Section 11(b) is probably consistent with the First Amendment insofar as only civil remedies are available, but this conclusion hinges on the precise scope of the true threats exception which remains unsettled.