Voter Intimidation Tactics Are Not New, but They Are Illegal
Over the past few weeks, Presidential Candidate Donald Trump, while calling on his supporters to get out the vote on Election Day, has taken it one step further in urging them to “protect” the election from “cheating.”
Trump suggests that the softening of some discriminatory voter ID laws by federal courts will somehow lead to voters casting ballots multiple times, and encourages his supporters to “go out and watch. ”
Speaking to an audience in Akron, Ohio on Monday, Trump, with a troubling wink and a nod, explained to his supporters what “watching” the election really means:
“You’ve gotta get everyone of your friends. You’ve gotta get everyone of your family. You’ve gotta get everybody to go out and watch and go out and vote. And when I say watch, you know what I’m talking about, right? You know what I’m talking about. I think you gotta go out and you gotta watch.”
Trump has also issued repeated calls to action to his supporters warning that, absent their “protection,” cheating in “certain sections” of Pennsylvania will hand the election to Hillary Clinton.
The reference to “certain sections” is almost certainly a dog whistle reference to the repeatedly debunked theory that heavily black, urban areas in Philadelphia are sites of rampant voter fraud. As the LA Times and Washington Post noted, voters and commentators do in fact “know what he’s talking about” and the answer isn’t comforting.
These comments sound alarm bells for those who understand the difference between poll watching to ensure every eligible voter can cast a ballot, and voter intimidation to do just the opposite.
Threats of aggressive poll-watching to intimidate minority voters are unfortunately neither new nor idle. Because of aggressive voter intimidation in the guise of “ballot security” in the 1980s, the Republican National Committee is under a consent decree barring it from engaging in any ballot security programs without pre-clearance from a federal court.
In 2010 and 2012, there were numerous reports of voter intimidation in the guise of poll-watching. In Texas, volunteers from the King Street Patriots reportedly followed voters as they entered polling places and hovered over them as they cast ballots, blocking lines of people trying to vote. Houston officials received more than 50 complaints. Meanwhile, in St. Paul and Wisconsin, volunteers organized “surveillance squads” to follow buses of voters headed to the polls and photograph and videotape “suspicious” voters.
At this moment of high tension in the election, and increased suggestions of a “rigged” election, it’s worthwhile to clarify the law on election observation and intimidation, the latter of which is a criminal and civil offense.
Poll-watching, even partisan poll-watching, is not uncommon or unlawful. Candidates often employ poll-watchers to make sure that election rules are administered fairly and evenly and problems at the polls are quickly addressed. However, poll-watchers are meant to observe and report irregularities, not intervene and take it upon themselves to secure the ballot.
Poll-watchers are certainly not meant to confront and intimidate voters in the name of protecting the ballot box from fraud. Indeed, voter intimidation is both a criminal offense prosecutable by the Department of Justice and a civil offense with a private right of action.
There are several federal laws prohibiting voter intimidation. The most important and most comprehensive is Section 11(b) of the Voting Rights Act, which states:
“No person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote, or intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for urging or aiding any person to vote or attempt to vote, or intimidate, threaten, or coerce any person for exercising any powers or duties under section 3(a), 6, 8, 9, 10, or 12(e).”
The protections of Section 11(b) are broad and intended to prohibit all objectively intimidating behavior. It was enacted at a time when the Department of Justice desperately needed strong tools to curb the aggressive tactics of the Jim Crow South. Indeed, the legislative history makes very clear that Section 11(b) doesn’t require proof of intent to intimidate; only proof of conduct that objectively has a tendency to intimidate, threaten, or coerce a reasonable voter. This objective standard is vital to protecting voters from undue interference at the polls.
Violations of Section 11 are both criminal and civil violations. The Department of Justice has broad power to enforce Section 11(b) but victims of voter intimidation also have a private right of action to enforce Section 11(b)’s prohibitions. Poll watching must not be used as a code and excuse for deterring unwanted voters from casting their ballots. Citizens, advocates, and the Department of Justice must all be willing to step forward and enforce Section 11(b) to ensure that all citizens have a meaningful opportunity to cast a ballot without fear or apprehension.