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John Adams words still hold sway, writes Kevin Johnson.
Our laws will carry us through the 2020 election
Oct 08 2020
John Adams issued a mantra amidst the American Revolution: "Ours is a country of laws not men." In today's time of turmoil, as President Trump questions the integrity of the upcoming election, the words of the second president should give us some solace.
During the debate, the current president asked for supporters to show up at the polls and "watch carefully," which sounded to some like a form of voter intimidation. Here's some perspective on the laws that govern poll watchers and political activity around polling stations.
<p>Every state regulates poll watchers, who <a data-linked-post="2648140962" href="https://thefulcrum.us/voting/poll-watchers" target="_blank">monitor the election inside polling stations</a> on behalf of their party. Most states require that party poll watchers be registered voters either in the county where they observe or in the state. Some states limit poll watchers to one per party per polling station. Authorities can further limit the number of poll watchers to maintain efficient administration. State laws prevent party poll watchers from wearing or showing campaign insignia. They also prohibit attempts to influence voters.</p><p>Overall, party poll watchers are positive for democracy. They enhance transparency and remind officials to carefully follow correct procedures. I've served as an election monitor overseas, and when I saw party poll watchers there, they usually helped validate the election.</p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>Many states also have laws allowing citizens who are not poll watchers to challenge voter eligibility. These challenge laws precede our systems of statewide election registration and are ripe for review and repeal. They <a href="https://www.brennancenter.org/sites/default/files/legacy/publications/Voter_Challengers.pdf" rel="noopener noreferrer" target="_blank">have allowed</a> individual citizens to harass voters. </p><p>There are two ways to reduce the risks to the election. First, in nearly every state, challengers must themselves be registered voters in the locality where they challenge a voter. Second, a challenge that crosses the line into intimidation becomes a crime under federal law. The <a href="https://codes.findlaw.com/us/title-18-crimes-and-criminal-procedure/18-usc-sect-594.html" rel="noopener noreferrer" target="_blank">federal voter intimidation law</a> makes an attempt to threaten or coerce a voter a felony (punishable by a $1,000 fine and up to a year in prison).</p><p>Each state specifies a safe distance — 10 to 600 feet — between electioneers and a polling station. Beyond that point, freedom of speech permits raised voices, campaign signs and other forms of expression — within the limits of laws on disturbing the peace. A recent study on <a href="https://giffords.org/lawcenter/report/preventing-armed-voter-intimidation-a-state-by-state-analysis/" rel="noopener noreferrer" target="_blank">Preventing Armed Voter Intimation</a> concluded state laws are more lax than they should be about citizens having firearms near polling stations. But nearly every state has laws against using weapons to intimidate. All 50 states have <a href="https://www.law.georgetown.edu/icap/our-work/addressing-the-rise-of-unlawful-private-paramilitaries/state-fact-sheets/" rel="noopener noreferrer" target="_blank">laws</a> barring unauthorized private militia groups.</p><p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>A recent <a href="https://static1.squarespace.com/static/5e70e52c7c72720ed714313f/t/5f6b905faf68aa79e3b358df/1600884832119/Election+Contests+.pdf" rel="noopener noreferrer" target="_blank">report</a> by the <a href="https://www.electiontaskforce.org/" rel="noopener noreferrer" target="_blank">National Task Force on Election Crises</a> reminded us that anyone with actual evidence of election fraud or misconduct have ways to make and prove their allegations. </p><p>We shouldn't be complacent about the hyper-partisanship, or the real risks of upheaval and even violence around polling stations in 2020. The breakdown in civility between the two parties is unprecedented. But our system combines a culture of democracy with a prescribed role for local law enforcement to ensure order. It is well positioned to maintain stability on Election Day.</p><p>Both sides have made exaggerated claims. A recent Boston Globe <a href="https://www.bostonglobe.com/2020/09/07/opinion/supreme-courts-starring-role-democracys-demise/" rel="noopener noreferrer" target="_blank">op-ed</a>, for example, described absentee balloting requirements in Texas and Alabama as "nothing less than biological warfare on the right to vote" for Black and Latino voters. President Trump has repeatedly claimed, without evidence, that the mail-in ballots are subject to fraud. </p><p>The words of our political leaders do have an impact. Given the polarization that divides Americans, there is a real risk that unsubstantiated claims of election problems will decrease popular confidence in the results and increase the risk of violence. </p><p>But in the end, as Adams said, our government of laws will hold sway. Our institutions are durable and are ready to carry us through this election, if we let them.</p><p><em>Kevin Johnson is executive director of <a data-linked-post="2641239195" href="https://thefulcrum.us/election-reformers-network" target="_blank">Election Reformers Network</a> and a member of The Carter Center's 2020 Election Expert Study Team. R<em><em><em><em>ead more from The Fulcrum's <a href="https://thefulcrum.us/election-dissection" target="_self">Election Dissection</a> blog or see our <a href="https://thefulcrum.us/election-dissection/election-coverage" target="_self">full list of contributors</a>.</em></em></em></em></em></p>
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Yasin Ozturk/Getty Images
The potential for bigger crowds of partisans at the polls this fall has heightened anxiety around voter intimidation.
Poll watching vs. electioneering: Unpacking more confusion sowed by Trump
Oct 08 2020
President Trump's directive to his supporters "to go into the polls and watch very carefully" has magnified anxiety that the election will soon become marred by violence and voter intimidation.
Since exhorting his allies in last week's debate, the president has not offered more detailed instructions. So it's not altogether clear if he wants fans to go through the process of becoming official partisan observers, who get to be inside voting stations — or if he was encouraging boisterous rallies of loyalists outside thousands of schools and libraries nationwide.
Either way, unnerved voting rights advocates and election officials fear his vague but incendiary call to action will lead to disturbances and chaos. Beyond the confusion between poll watching (formal and strictly overseen) and electioneering (informal and less regulated) are worries about an Election Day imperiled by polarized clashes between the left and the right.
Answers to several questions may help the nation rise above the muddle the president has created, if not the anger.
<p>The concerns come at a time of already immense stress for election officials, who are contending with how to run an election during a pandemic and seeking to reassure voters the democratic process remains safe, fair and transparent despite Covid-19 and the president's baseless assertions about massive vote fraud. </p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>The executive director of the Lawyers' Committee for Civil Rights Under Law, Kristen Clarke, says her organization has quadrupled its cohort to 21,000 attorneys in preparation for potential legal battles waged over voting and the election.</p><p>"We are deeply concerned about the chilling effect that President Trump's statements may have on the electorate," she told reporters after the debate, adding that her group is "committed to making sure voters can participate in this process free of intimidation."</p><p>Three Democratic attorneys general from battleground states — Michigan, Nevada and Wisconsin — banded together to warn this week that anyone using tactics to scare away voters will be prosecuted.</p><p>"Intimidating voters to prevent them from casting a ballot is not only unacceptable — it's a felony," Wisconsin's Josh Kaul said. "Anyone who engages in that kind of illegal conduct should expect to be investigated and prosecuted."</p><p>At the same time, the Trump campaign is circulating training videos for the cadre of thousands of poll watchers it's hoping to deploy nationwide on Election Day. They emphasize rule-following, avoiding causing disruption and a focus on spotting suspicious behavior — not preventing the casting of legitimate ballots.</p><p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>But they do not address the crowds of chanting Trump supporters who gathered at an early voting site in suburban Virginia last week.</p><p>To help understand the difference, here are answers to some of the most frequently asked questions.</p><h4>Trump wants supporters to "go into the polls and watch very carefully." Is that legal?</h4><p>Unless they are official poll watchers, no. Only election staffers and voters intending to cast a ballot are allowed inside polling stations while an election is ongoing.</p><h4>So what is a poll watcher?</h4><p>It's standard practice for political parties or candidates to enlist poll watchers to ensure ballots are being cast and counted properly. Partisan poll watchers are the most common type, but some states also authorize nonpartisan citizen observers, international observers and academic observers.</p><h4>What is the poll watchers' job?</h4><p>They observe Election Day activity at voting locations, including setup procedures before the polls open and onsite tabulating after they close, to ensure election administrators are complying with rules and regulations. While poll watchers can challenge a voter's eligibility, they cannot interfere directly with that voter. (Suspicions are reported to election administrators.) Poll watchers may also keep track of voter turnout for their political party.</p><h4>Does every state allow poll watchers?</h4><p>West Virginia is the only state that does not permit poll watchers of any kind while voting is in progress. Election officials are responsible for challenging voters.</p><h4>Can anyone sign up to be a poll watcher?</h4><p>Not necessarily. Forty states, plus D.C., have formal accreditation processes. Local party leaders, candidates or other political operatives can appoint observers, although in some cases the people must be approved by local or state election officials. Most states also require poll watchers to be registered voters. Law enforcement officers, candidates and their family members are often barred from serving as poll watchers.</p><h4>How many poll watchers do states enlist for elections?</h4><p>It varies, but generally one or two Republican and Democratic observers are allowed in each voting place. Some states require they wear badges identifying themselves.</p><h4>Are poll watchers the same as poll workers?</h4><p>No. Poll workers are trained (and in most cases, paid) temporary employees of the local election administrators. They help in the physical conduct of elections by setting up voting machines, checking-in voters and assuring they're registered, keeping the lines orderly, answering questions and passing out "I Voted" stickers. </p><h4>What happens if a poll watcher, or somebody else, tries to interfere with a voter inside a polling place?</h4><p>It is a federal crime to intimidate, threaten or coerce a person for the purpose of interfering with their right to vote. Many state laws also protect against voter intimidation. For more information about voter intimidation and how to report it, read <a href="https://www.aclu.org/know-your-rights/voting-rights/#someone-is-interfering-with-my-right-to-vote" rel="noopener noreferrer" target="_blank">this guide</a> by the ACLU.</p><h4>What about interfering outside?</h4><p>Voter intimidation is forbidden inside or outside a polling location. It is also prohibited to interfere with or block voters in line or walking into a building to cast a ballot. However, beyond a certain perimeter outside of a polling location, electioneering is allowed.</p><h4>What is electioneering?</h4><p>The formal definition is audible or visible advocacy for or against a political issue, ballot measure or candidate. In other words, non-violent demonstration. Activity can include vocalizing political opinions or messaging, displaying campaign signs, waving flags or wearing candidate swag.</p><h4>How close to a polling location can electioneering happen?</h4><p>In 24 states, the electioneering perimeter is 100 feet from the door of a polling location. Thirteen states make people stand farther away — as far as 600 feet, in Louisiana. A dozen states allow electioneers to get closer, as close as 10 feet in Pennsylvania and New Hampshire. Vermont leaves it up to county officials to decide, and Washington does not specify a distance (although it might not be as much of an issue because the state conducts elections primarily by mail).</p><div class="rm-embed embed-media"><iframe aria-label="" frameborder="0" scrolling="no" src="https://flo.uri.sh/visualisation/3942982/embed" style="width:100%;height:600px;"></iframe><div style="width:100%!;margin-top:4px!important;text-align:right!important;"><a class="flourish-credit" href="https://public.flourish.studio/visualisation/3942982/?utm_source=embed&utm_campaign=visualisation/3942982" style="text-decoration:none!important" target="_top"><img alt="Made with Flourish" src="https://public.flourish.studio/resources/made_with_flourish.svg"> </a></div></div><h4>Can military or law enforcement officers be present at polling locations?<br></h4><p>Although Trump has promised to do so if voter fraud occurs, it is illegal to deploy federal troops or armed officers to polling stations. State and local laws also limit the presence of law enforcement at the polls. The Brennan Center for Justice <a href="https://www.brennancenter.org/our-work/research-reports/voters-should-not-be-intimidated" target="_blank">released a report</a> this week outlining the roles law enforcement can and cannot play at the polls.</p><h4>Need more help?</h4><p>For answers to additional questions, or assistance if challenged when trying to vote, one option is calling the <a href="https://866ourvote.org/" target="_blank">Election Protection hotline</a>. It offers help in English, Spanish, Arabic, Bengali, Cantonese, Hindi, Urdu, Korean, Mandarin, Tagalog and Vietnamese.</p>
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How to separate poll watching from voter intimidation
Oct 05 2020
Contributor Tammy Patrick, a senior advisor at the Democracy Fund, went on NPR on Thursday to explain how one of the mechanics of the election — poll watchers — do their work in most states. Her explanation stood in contrast to what President Trump seemed to be calling for in Tuesday's presidential debate. While warning about potential voter fraud, he asked his supporters to "go into the polls and watch very carefully."
Almost every state has some sort of system set up so political parties can send observers inside polling places, explained Patrick, who was previously an elections official in Maricopa County, Arizona (which includes Phoenix). But there are clear rules and limitations about what these observers can do — how close they can be to voting equipment, who they can talk to and what they can challenge. Poll watchers have to sign up ahead of time and work with election officials, she said.
<p>Trump supporters responding to the president's call are likely to be treated as "electioneers," and that means they'll be restricted from how close they can get to a polling place. If they yell or try to intimidate voters, they'll be breaking the law, Patrick said. It's urgent that election officials have the training to de-escalate potential conflicts, how to report them and where to seek help.</p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>"There is a tactic here that can be used to make sure that individuals start to question whether or not it is safe to even go to the polling place," Patrick said. "Unfortunately, in this moment, we need to make sure that our elections are protected from adversaries, both foreign and domestic." </p><p>Listen to Patrick's <a href="https://www.npr.org/transcripts/919228801" rel="noopener noreferrer" target="_blank">full interview</a> on All Things Considered last week:</p><p><br></p><div class="rm-embed embed-media"><iframe frameborder="0" height="290" scrolling="no" src="https://www.npr.org/player/embed/919228801/919228802" title="NPR embedded audio player" width="100%"></iframe></div><div><p><em>Read more from The Fulcrum's <a href="https://thefulcrum.us/election-dissection" target="_self">Election Dissection</a> blog or see our <a href="https://thefulcrum.us/election-dissection/election-coverage" target="_self">full list of contributors</a>.</em></p></div>
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