With the Nov. 8 election rapidly approaching, tension over what voters will encounter at the polls has never been higher.
This week, presidential candidate Donald Trump’s surrogates have doubled down on his calls for supporters to “make sure that this election is not stolen from us,” encouraging them to sign up as “Trump election observers” which voting rights advocates consider a call for intimidation.
Trump has singled out “certain communities” in Philadelphia, where most of the state’s black voters are located, as areas that must be “watched.” These comments are a continuation of what Trump has been saying for months, promoting behavior at the polls that could result in voter harassment and intimidation.
As CLC’s Danielle Lang explained in an August blog post, voter suppression through intimidation at the polls is not a new tactic, but it is a crime. To the extent Trump is inviting his supporters to harass minority voters at the polls based on unfounded claims of fraud, he is inciting criminal activity.
The Department of Justice (DOJ) has had to address these intimidation tactics before.
In 1994, the DOJ sent letters to the Secretaries of State of Alabama and Mississippi, as well as an adviser for the Republican Party, regarding filming of voters at the polls and preventing voters from being assisted by the person of their choice when casting a ballot.
In the Alabama letter, the DOJ explained that these tactics further no legitimate goal and intimidate voters: “We have found that no useful information is obtained, and federal law is likely to be violated, when private citizens form ‘ballot security’ forces and attempt to take over the role of policing polling places. . . . [S]uch action intimidates lawful voters and interjects an element of fear into the process by which our republican form of government is guaranteed to our citizens.”
In the Mississippi letter, the DOJ again sharply unmasked the use of filming at the polls as an unacceptable and unlawful scare tactic: “I can assure you that . . . we will not countenance any thinly veiled attempts to intimidate black voters at the polls.” The letter also asserts that such activity could be a violation of federal law.
The DOJ further explained the importance of allowing voters to be assisted by citizens of their choice in casting their ballots: “This activity has its roots in blacks’ long lack of access to the polls and to quality education in the south, and in no way bears an assumption of fraudulent activity.”
This year, voter intimidation is of particular concern because, as The Washington Post reported, the Department of Justice is massively cutting back the number of federal observers stationed in polling places. For 50 years, the federal observer program was a key protection against voter intimidation and discrimination at the polls. However, the DOJ has interpreted the U.S. Supreme Court’s decision in Shelby County v. Holder (2013) to severely curtail its ability to send federal observers into polling places, requiring it to seek permission from the relevant jurisdiction or a court order.
Trump has indicated that his supporters need to “watch” the polls because of the risk of voter fraud. With less than four weeks until Election Day, it is important to remember that voter fraud is rare, voter impersonation is virtually nonexistent, and many of the problems associated with alleged fraud actually stem from clerical errors.
These DOJ letters are a reminder that threats of voter intimidation in the name of ballot security are more common than actual voter fraud. They are also a reminder that voter intimidation is a crime subject to federal civil and criminal penalties. “Thinly veiled attempts” to intimidate voters under the guise of preventing voter fraud will not and should not be tolerated.