Donald Trump has been calling on his supporters to watch polling places for signs of fraud. His website offers sign-ups for “poll monitors” to observe polling in “other communities.” Trump argues it is out of concern that the entire election is rigged. For instance, he was quoted as saying “I am leading in Florida. The polls all show it. If I lose Florida, we will know that there’s voter fraud. If there’s voter fraud, this election will be illegitimate, the election of the winner will be illegitimate, we will have a constitutional crisis, widespread civil disobedience, and the government will no longer be the government.” When Trump made this statement, he was behind in the Florida polls by an average of 5 points.
The concern, “rigged election” aside, is that the “poll monitors” will be a thinly veiled excuse to target minorities in the polling place. Beyond Trump’s not so ambiguous “other communities” comments, he has made it clear that he believes a wave of illegal immigrants will be let into the country in order to vote for Hillary. Those signing up for the program have not alleviated concerns. One Florida volunteer posted a picture of a truck festooned in American flags with a cage around the bed of the truck and a comment reading “Florida we gonna landslide TRUMP….wear’n red at polls… We gonna be watch’n fer shenanigans…& haul ya away..” Another made concerning statements about his intent on election day, saying “ I’ll look for . . . well, it’s called racial profiling. Mexicans. Syrians. People who can’t speak American,” he said. “I’m going to go right up behind them. I’ll do everything legally. I want to see if they are accountable. I’m not going to do anything illegal. I’m going to make them a little bit nervous.”
Is Trump’s plan for these poll watchers doing legal? Unfortunately, it is to an extent. The issue hinges on voter challenge and voter intimidation laws nationwide.
Voter Challenge Laws Across the Nation
Whether or not Trump’s tactics are legal, they are certainly not new. For example, in 2012, a Tea Party group recruited over a million poll watchers with the goal of making voting “like driving and seeing the police following you.” The problems hinge on abuse of existing voter challenge laws.
46 states have laws which allow a private citizen to challenge a person’s status as an eligible voter up to and on election day. While the exact details of the statute vary slightly from state to state, only 15 of these states require the challenger to provide any sort of documentation to support their challenge with most laws placing the burden on the person challenged to establish that they are a legal voter. In Wisconsin, Virginia, Oregon, and South Carolina the challenger needs only a suspicion that the person is not qualified.
Trump’s primary target for his poll watchers, Pennsylvania, has seen abuse of their broad voter challenge statute in the past. As recently as 2004, hundreds of students had to wait hours to vote after attorneys from the republican party challenged every young person who came to vote pursuant to Pennsylvania’s voter challenge laws. The law in Pennsylvania allows private citizens to challenge voter status of any person seeking to vote leading up to and on election day. The challenger doesn’t have to provide any evidence for their challenge, but in 2004 through today, the challenged party must find a friend to sign an affidavit of their voter status and residence before they are allowed to vote.
Over the last decade, states such as Virginia, Colorado, Nevada, Iowa, and New Hampshire have enhanced the burden on those challenging a voter to avoid abuse. Just this year, the constitutionality of the voter challenge laws of Texas, North Carolina, Ohio and Wisconsin have all come up before the Supreme Court—although the court has been deadlocked 4-4 or failed to yet rule on each case. Florida requires challengers to state a valid reason for the challenge in writing; North Carolina requires “affirmative evidence” that the voter is ineligible.
Pennsylvania has taken a different approach to its history with its challenge law. While the law itself has not changed since 2004, Pennsylvania currently has a law dealing with voter challenge in their legislature…to allow poll watchers to be certified to go anywhere statewide as opposed to just their own county.
While the ability to challenge the voter registration where a person is not properly registered is not independently a bad thing, the vulnerability to abuse can make the laws dangerous. Across the nation, sweeping challenges targeting students and minorities are shockingly common. The laws have led to anecdotes such as an older white man challenging every black person who entered a polling place, requiring them all to defend their registration and sign an affidavit. In Ohio’s 2004 election, 97% of new voters in predominately black locations faced challenges. This is in contrast to 14% in predominantly white locations.
Abuse of these laws, and the voting system has reached the highest levels. A series of cases through the eighties and nineties, brought by the Democratic National Committee (DNC) against the Republican National Committee (RNC), has forbidden the RNC from engaging in any kind of “ballot security program” other than “normal poll watch functions” after they targeted 150,000 voters in predominantly African-American precincts in the early eighties.
The consent decree binding the RNC was enforced and extended in 2009, with the judge finding that “[v]oter intimidation presents an ongoing threat to the participation of minority individuals in the political process, and continues to pose a far greater danger to the integrity of that process than the type of voter fraud the RNC is prevented from addressing by the Decree.” With the consent decree set to expire in January 2017, the DNC has sued the RNC a little over a week ago over their alleged support of Trump’s poll watching campaign. They seek, among other things, to extend the consent decree.
Regardless of the legality of the RNC’s potential involvement, the broad nature of most voter challenge laws makes much of what Trump’s poll watchers are likely to do come election day legal. The exception to this is when their actions cross the line from challenge to voter intimidation—as mentioned in the renewal of the consent decree against the RNC.
Federal Voter Intimidation Statute
Federal law makes it a crime in all 50 states to intimidate, threaten, coerce, or attempts to intimidate, threaten, or coerce, a person trying to vote.
The actions of Trump supporters discussed above would clearly rise to the level of criminal voter intimidation. However, a person need not go to such extremes to be guilty of voter intimidation. Courts have found intimidation where people gather in groups around, or even within 100 feet, of voting places as such gatherings could easily deter nervous voters. Bringing a weapon of any type to a voting place and remaining there would also likely be voter intimidation—some states specifically ban the practice.
While voter intimidation is a fact specific crime, any voter who feels intimidated should immediately report the actions against them to authorities. Poll watching and voter challenges, depending on how confrontational they are, can easily cross the line from challenge to crime. Legal threat (including threats of deportation) and economic threat both count as intimidation. In many states, such as Ohio, misleading a person as to voting information is also a crime.
Trump’s poll watchers are acting in a way that flirts with criminal intimidation. Know your rights this election day; don’t allow poll watchers to criminally intimidate you.