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Voters Should Not Be Intimidated

There are strict limits on what the military, law enforcement, and private militias or other vigilantes can do at the polls.

This piece was updated on Octo­ber 7 to add inform­a­tion about state and local restric­tions on private mili­tia groups and unau­thor­ized secur­ity oper­a­tions.

As Elec­tion Day nears, Pres­id­ent Trump has increas­ingly threatened to instig­ate voter intim­id­a­tion. First, he has insinu­ated that he will deploy law enforce­ment officers or call up the National Guard to root out elec­tion-related crimes at the polls. (Spoiler alert: voter fraud is vanish­ingly rare). The pres­id­ent has abused his author­ity over law enforce­ment before, most notably when he deployed federal agents — and threatened to deploy the milit­ary — in response to domestic protests earlier this summer.

On top of this, in the first nation­ally tele­vised pres­id­en­tial debate the pres­id­ent called for his support­ers to “go into the polls and watch very care­fully,” espe­cially in Phil­adelphia. The Repub­lican National Commit­tee (RNC) claims to be gear­ing up for an aggress­ive “ballot secur­ity” oper­a­tion involving 50,000 poll watch­ers, which many worry could include plans to intim­id­ate voters. In 2017 a court freed the RNC from a 35-year-old consent decree that required the commit­tee to obtain judi­cial approval of any such oper­a­tions to ensure that they would not illeg­ally intim­id­ate or discrim­in­ate against voters or inter­fere with their right to vote.

There is a shame­ful history in parts of the coun­try of armed officers, on duty or off, target­ing Black voters and other voters of color for intim­id­a­tion. Their mere pres­ence in polling places could raise reas­on­able fears among groups that are frequently the target of racial profil­ing and police miscon­duct.

But the law is crys­tal clear: it is illegal to deploy federal troops or armed federal law enforce­ment officers to any polling place. State and local laws and prac­tices place limits on the role of law enforce­ment and poll watch­ers. And a host of federal and state laws, many of which also carry severe crim­inal penal­ties, prevent anyone — whether a law enforce­ment officer or a vigil­ante — from harass­ing or intim­id­at­ing voters.

The U.S. Milit­ary

Bottom Line: It would be illegal — and in many cases a federal crime — for the pres­id­ent to deploy the milit­ary to inter­fere with the elec­tion.

The Concern: Pres­id­ent Trump has threatened to deploy the milit­ary to U.S. cities in response to protests; these threats have often been linked to his partisan attacks on Demo­cratic mayors and governors. Although Trump has not expli­citly said he would deploy troops to the polls, his threats to send in law enforce­ment echo his recent response to those protests. These threats, and Trump’s politi­ciz­a­tion of the milit­ary in other contexts, recently promp­ted two members of Congress to ask Chair­man of the Joint Chiefs of Staff Mark Milley whether he would obey an order to send active duty milit­ary to polling places.

Why It’s Illegal: Any deploy­ment of troops or other armed federal agents to a polling place is a federal crime (unless the coun­try is liter­ally being invaded). The law, which dates back to 1948, says:

Whoever, being an officer of the Army or Navy, or other person in the civil, milit­ary, or naval service of the United States, orders, brings, keeps, or has under his author­ity or control any troops or armed men at any place where a general or special elec­tion is held, unless such force be neces­sary to repel armed enemies of the United States, shall be fined under this title or imprisoned not more than five years, or both; and be disqual­i­fied from hold­ing any office of honor, profit, or trust under the United States. foot­note1_pp0r7iq 1 18 U.S.C. § 592.

Other federal stat­utes also prohibit the milit­ary from inter­fer­ing in our elec­tions. foot­note2_6gxn­m42 2 See 18 U.S.C. § 593 (punish­ing any officer of the milit­ary who seeks to “prescribe or fix . . . voter qual­i­fic­a­tions,” intim­id­ate voters, or impose elec­tion regu­la­tions on a state “differ­ent from those prescribed by law”); 52 U.S.C. 10102 (“No officer of the Army, Navy, or Air Force of the United States shall prescribe or fix, or attempt to prescribe or fix, by proclam­a­tion, order, or other­wise, the qual­i­fic­a­tions of voters in any State, or in any manner inter­fere with the free­dom of any elec­tion in any State, or with the exer­cise of the free right of suffrage in any State.”).  And the Posse Comit­atus Act of 1878 bars troops from being deployed on U.S. soil gener­ally. foot­note3_mjsp39o 3 18 U.S.C. § 1385.  There are excep­tions to the law that Trump has tried to exploit, but they do not allow him to circum­vent the expli­cit prohib­i­tion on using the milit­ary to inter­fere in elec­tions.

In short, the pres­id­ent cannot deploy the milit­ary for any purpose connec­ted to an elec­tion. The milit­ary knows this. A 2018 Defense Depart­ment direct­ive confirms that milit­ary person­nel “will not conduct oper­a­tions at polling places.” foot­note4_l17lm32 4 U.S. Depart­ment of Defense, Defense Support of Civil Author­it­ies (DSCA), Direct­ive No. 3025.18, Mar. 19, 2018, 7, https://www.esd.whs.mil/Portals/54/Docu­ments/DD/issu­ances/dodd/302518p.pdf?v.  Like­wise, when asked by the two members of Congress whether he would send troops to polling places, General Milley made clear, “I do not see the U.S. Milit­ary as part of this process.” Any officers who try to cross this line could be prosec­uted.

The Depart­ment of Home­land Secur­ity

Bottom Line: As with the milit­ary, it would be a crime for the Depart­ment of Home­land Secur­ity (DHS) to deploy any of its agents — includ­ing those from the Federal Protect­ive Service, Customs and Border Protec­tion, and Immig­ra­tion and Customs Enforce­ment (ICE) — in connec­tion with an elec­tion.

The Concern: Over the summer, in response to civil unrest accom­pa­ny­ing the wave of peace­ful protests that followed the murder of George Floyd, the Trump admin­is­tra­tion reck­lessly deployed agents from the Federal Protect­ive Service and Customs and Border Protec­tion to Port­land, Oregon, and other U.S. cities over the objec­tions of state and local offi­cials (a number of whom have filed lawsuits that are pending in federal court). The admin­is­tra­tion claimed that the agents had been deployed only to protect federal prop­erty, but they allegedly assaul­ted protest­ers and carried out arrests far from federal build­ings. This history, coupled with the pres­id­ent’s recent threats, raises under­stand­able fears that DHS forces might be deployed to intim­id­ate voters.

False rumors are also now spread­ing about plans for ICE agents to patrol the vicin­ity of polling places and even arrest voters they suspect of being undoc­u­mented. Some of these rumors appear to have come from groups that are inten­tion­ally trying to suppress the vote among Lati­nos and other people of color. These rumors create real fear in communit­ies ICE has targeted with increas­ingly aggress­ive tactics.

Why It’s Illegal: Any deploy­ment of DHS agents in the vicin­ity of a polling place or any place where votes are being coun­ted would viol­ate the same crim­inal stat­ute that applies to all armed federal officers. The Depart­ment of Justice’s own elec­tion crimes manual confirms that the stat­ute bars any armed federal agent from elec­tion sites. foot­note5_6b2lj6i 5 Richard C. Pilger, ed., Federal Prosec­u­tion of Elec­tion Offenses, 8th ed., U.S. Depart­ment of Justice, Decem­ber 2017, 9, https://www.justice.gov/crim­inal/file/1029066/down­load.  Indeed, when asked about the pres­id­ent’s threat to send agents to the polls, the acting head of DHS respon­ded point-blank: “We don’t have any author­ity to do that at the depart­ment.”

It is also illegal for anyone to intim­id­ate or threaten voters, disen­fran­chise voters, or target voters based on their race or ethni­city — federal agents included. The use of federal agents to intim­id­ate voters is a crime under section 11 of the Voting Rights Act of 1965 (VRA). foot­note6_f8tnsee 6 52 U.S.C. § 10101(b) (2018); see also 18 U.S.C. § 594 (2018) (“Whoever intim­id­ates, threatens, coerces, or attempts to intim­id­ate, threaten, or coerce, any other person for the purpose of inter­fer­ing with the right of such other person to vote or to vote as he may choose . . . shall be fined under this title or imprisoned not more than one year, or both.”).  Courts have held that the law forbids tactics such as follow­ing alleged suspectsrecord­ing license plate numbers, and bran­dish­ing weapons. foot­note7_0lsulg1 7 Demo­cratic National Commit­tee v. Repub­lican National Commit­tee, No. 81–3876 (DRD) (NJ 2009).  The consequence for an inten­tional viol­a­tion? Up to five years in prison. foot­note8_oq9uyad 8 52 U.S.C. § 10308.

Federal law also makes it a crime for people (includ­ing govern­ment offi­cials) to conspire to deprive someone of the right to vote or the right to be free from discrim­in­a­tion. foot­note9_xgff­sxa 9 42 U.S.C. § 1985(3).  For this offense, viol­at­ors face up to 10 years in prison. The Consti­tu­tion too prohib­its govern­ment offi­cials (includ­ing ICE and other federal agents) from target­ing voters of color for enforce­ment actions. foot­note10_w12kyn4 10 U.S. Const. Amend. I, V, XV.

Even aggress­ive DHS oper­a­tions uncon­nec­ted to an elec­tion may be out of bounds during the elec­tion. The Consti­tu­tion limits other­wise legal federal law enforce­ment activ­it­ies if they inter­fere with areas of funda­mental state concern. For example, federal courts have blocked ICE agents from enter­ing state judi­cial facil­it­ies to arrest undoc­u­mented immig­rants because it disrupts states’ abil­ity to oper­ate their own court systems. foot­note11_g4oc0bp 11 See, e.g., State v. U.S. Customs and Immig­ra­tion Enforce­ment, 431 F.Supp.3d 377, 392 (S.D.N.Y. 2019).  The same logic would bar oper­a­tions by ICE (or other parts of DHS) that could signi­fic­antly inter­fere with a state’s abil­ity to conduct a free and fair general elec­tion. foot­note12_8s7g721 12 One note of caution: if ICE agents try some­thing illegal, poll work­ers and others should not take it upon them­selves to call them on it. Anyone who tries to prevent an ICE agent from appre­hend­ing someone who may be in the United States unlaw­fully can them­selves be held crim­in­ally liable, even if the agent is acting illeg­ally. Anyone who witnesses ICE agents near the polls should imme­di­ately contact state and local elec­tion offi­cials and immig­rant and voting rights organ­iz­a­tions — includ­ing by call­ing 866.OUR.VOTE, a nonpar­tisan voter protec­tion hotline staffed by trained volun­teers.

The Depart­ment of Justice

Bottom Line: At the polls, the Depart­ment of Justice (DOJ) is limited to observing elec­tions for compli­ance with federal voting rights laws for subsequent enforce­ment efforts. It cannot inter­fere with the voting process or send agents to invest­ig­ate other laws.

The Concern: Attor­ney General Barr, who has frequently repeated the pres­id­ent’s lies about purpor­ted voter fraud, has asser­ted the right to send DOJ agents to the polls for a vari­ety of reas­ons, includ­ing to invest­ig­ate poten­tial elec­tion crimes. His state­ments, coupled with the pres­id­ent’s own threats to have U.S. attor­neys at the polls, have led to fears that Trump and Barr will seek to use DOJ’s author­ity to meddle in the elec­tion.

Why It’s Illegal: DOJ is subject to the same restric­tions as other federal agen­cies, includ­ing the abso­lute bar on deploy­ing armed agents to polling places or other loca­tions where an elec­tion is being held. As the depart­ment’s own elec­tion crimes manual states, prosec­utors have “no author­ity to send FBI special agents or [U.S. marshals] to polling places.” foot­note13_pzth7d9 13 Pilger, Federal Prosec­u­tion of Elec­tion Offenses, 9.  Even invest­ig­at­ive activ­it­ies anywhere near polling places require special permis­sion. foot­note14_4afpzuz 14 Pilger, Federal Prosec­u­tion of Elec­tion Offenses, 9.

In short, Attor­ney General Barr, to the extent that he is assert­ing a right to deploy armed agents to the polls or other elec­tion-related sites while voting is ongo­ing, is simply wrong. If he did try to send armed agents to polling places during an elec­tion to invest­ig­ate poten­tial crimes or “enforce civil rights” (two pretexts he’s mentioned), he would be commit­ting a federal crime. Legit­im­ate elec­tion crime invest­ig­a­tions should be conduc­ted only after voting is complete, as typic­ally happens, includ­ing most recently in the wake of revel­a­tions of absentee ballot tamper­ing by a GOP oper­at­ive in a 2018 North Caro­lina congres­sional race. Elec­tion Day disturb­ances should be handled by state offi­cials.

While armed DOJ agents are not allowed at the polls, the depart­ment may under certain circum­stances send unarmed repres­ent­at­ives under its elec­tion obser­va­tion and monit­or­ing programs. These unarmed civil­ian federal employ­ees are tasked only with observing and monit­or­ing voting processes for compli­ance with the federal Voting Rights Act and the Help Amer­ica Vote Act and report­ing back to a court or DOJ’s Civil Rights Divi­sion. foot­note15_4xq52jr 15 Pilger, Federal Prosec­u­tion of Elec­tion Offenses, 85–86; and 52 U.S.C. §§ 10302(a), 10305(d).  They have no power to enforce the law. foot­note16_sgz4jpw 16 Pilger, Federal Prosec­u­tion of Elec­tion Offenses, 85n40.  In fact, monit­ors do not even have the author­ity to enter polling places without permis­sion from state or local elec­tion offi­cials. foot­note17_amoe1uo 17 U.S. Commis­sion on Civil Rights, An Assess­ment of Minor­ity Voting Rights Access in the United States, 2018, 268, https://www.usccr.gov/pubs/2018/Minor­ity_Voting_Access_2018.pdf; cf. 52 U.S.C. § 10305(d) (author­ity to enter polling places gran­ted to observ­ers).  The federal observer program, which was severely limited by a Supreme Court decision that gutted a core provi­sion of the Voting Rights Act, foot­note18_ka04d90 18 See Shelby County, Ala. v. Holder, 570 U.S. 529, 557 (2013) (declar­ing cover­age formula in 52 U.S.C. § 10303(b)); and 52 U.S.C. § 10305 (provid­ing for observ­ers in juris­dic­tions covered by the formula in § 10303(b)).  is now restric­ted to a small number of places where a court has ordered it (right now, just Ever­green, Alabama, and Pasadena, Texas). foot­note19_1qjne52 19 Patino v. City of Pasadena, 230 F. Supp. 3d 667, 729–30 (S.D. Tex. 2017); and Allen v. City of Ever­green, Civil No. 13–107, 2014 WL 12607819, * 2 (S.D. Ala. Jan. 13, 2014).

State and Local Law Enforce­ment

Bottom Line: State and local law enforce­ment can some­times be at polling places, but never under orders from the pres­id­ent and always subject to numer­ous restric­tions.

The Concern: The pres­id­ent’s threat to send law enforce­ment to the polls included local offi­cials such as sher­iffs. Even without such threats, the long history of discrim­in­at­ory poli­cing and offi­cial voter suppres­sion in many places provides ample reason to worry that the pres­ence of any law enforce­ment at the polls may intim­id­ate some voters, espe­cially voters of color.

What’s Legal and What Isn’t: The federal govern­ment, includ­ing the pres­id­ent, has no author­ity what­so­ever over state and local law enforce­ment, foot­note20_qkyt­w13 20 Printz v. U.S., 521 U.S. 898, 935 (1997) (“The Federal Govern­ment may neither issue direct­ives requir­ing the States to address partic­u­lar prob­lems nor command the States’ officers, or those of their polit­ical subdi­vi­sions, to admin­is­ter or enforce a federal regu­lat­ory program.”); see also New York v. U.S., 505 U.S. 144, 188 (1992).  and certainly no power to call them to the polls.

State and local law enforce­ment officers may have the right to be at the polls for the purpose of help­ing elec­tion offi­cials ensure a safe voting envir­on­ment. If, for example, private citizens try to inter­fere with the right to vote, elec­tion offi­cials may call law enforce­ment in to protect the public and ensure no one is deterred from voting.

But there are a vari­ety of legal restric­tions placed on state and local law enforce­ment. In some states, includ­ing Pennsylvania and Cali­for­nia, officers who show up to the polls without being called there by elec­tion offi­cials have commit­ted a crime. foot­note21_381xrhw 21 25 Pa. Stat. and Cons. Stat. Ann. § 3520 (West 2020); Cal. Elec. Code § 18544 (West 2020); John Tanner, “Effect­ive Monit­or­ing of Polling Places,” Baylor Law Review 61 (2009), 60–61.  In a number of other states, includ­ing Flor­ida, North Caro­lina, Ohio, and Wiscon­sin, officers at the polls must obey orders from elec­tion offi­cials. foot­note22_2ngfr2o 22 Fla. Stat. Ann. § 102.031(2) (West 2019); N.C. Gen. Stat. Ann. § 163–48 (West 2020); Ohio Rev. Code Ann. § 3501.33 (West 2020); and Wis. Stat. Ann. § 7.37(2) (West 2020).  And under no circum­stances may state or local police intim­id­ate voters, prevent people from voting, or target partic­u­lar racial or ethnic groups. These are all viol­a­tions of federal law. foot­note23_wj5u8ly 23 42 U.S.C. § 1983; 18 U.S.C. § 594.  Many states also have their own robust voting rights protec­tions. foot­note24_3fg74zx 24 See, e.g., Fla. Stat. Ann. §104.0615 (West 2020); Mich. Comp. Laws Ann. § 168.733 (West 2020); Nev. Rev. Stat. Ann. § 293.710.

In prac­tice, elec­tion offi­cials and law enforce­ment typic­ally develop plans ahead of elec­tions to ensure that voting processes will be orderly and fair, includ­ing through intrastate work­ing groups coordin­ated by elec­tion offi­cials to game out and plan for a vari­ety of scen­arios.

The National Guard

Bottom Line: The pres­id­ent cannot deploy armed National Guard units to the polls or exert any control over units at the polls. There are also limits on states’ use of the National Guard, includ­ing the general prohib­i­tions on intim­id­a­tion and discrim­in­a­tion.

The Concern: As with the milit­ary and federal law enforce­ment, Pres­id­ent Trump has misused his author­ity over the National Guard. His June deploy­ment of eleven states’ guard units to counter protests in Wash­ing­ton, DC, was widely criti­cized. Given this history and the pres­id­ent’s recent state­ments, some worry about guard units being deployed to harass or intim­id­ate voters or elec­tion offi­cials.

What’s Legal and What Isn’t: National Guard units under federal command are part of the U.S. milit­ary, foot­note25_tyailmn 25 10 U.S.C. §§ 10105, 10106 (2018) (“The Army National Guard while in the service of the United States is a compon­ent of the Army.”). Note that paral­lel stat­utes apply to the Air Force National Guard.  and so deploy­ing them to the polls would be a federal crime, just like it would be for the other milit­ary branches. Moreover, using them for law enforce­ment purposes would in most circum­stances viol­ate the Posse Comit­atus Act.

These prohib­i­tions do not apply to guard units under the command of a state govern­ment. Some states, however, have laws of their own prohib­it­ing the deploy­ment of guard units to the polls. In Cali­for­nia, for example, it is a misde­meanor for active-duty guard members (like other law enforce­ment officers) to enter voting loca­tions in many circum­stances. foot­note26_ap9qjk5 26 Cali­for­nia makes it a felony for any “person in posses­sion of a fire­arm or any uniformed peace officer, private guard, or secur­ity person­nel or any person who is wear­ing a uniform . . . in the imme­di­ate vicin­ity of . . . a polling place without writ­ten author­iz­a­tion of the appro­pri­ate city or county elec­tions offi­cial.” Cal. Elec. Code § 18544 (West 2020); and Tanner, “Effect­ive Monit­or­ing of Polling Places,” 60–61.  In every state, guard units under state command are also subject to the same federal and state voting rights and anti­discrim­in­a­tion laws as state and local law enforce­ment, which means that they would be subject to crim­inal penal­ties for voter intim­id­a­tion or other forms of elec­tion inter­fer­ence.

During the primar­ies, in the face of a nation­wide poll worker short­age due to Covid-19, several states did deploy guard units to serve as emer­gency elec­tion work­ers. Those units were gener­ally unarmed and served as ordin­ary poll work­ers or performed other admin­is­trat­ive tasks. Such a deploy­ment, while appro­pri­ate in the case of last-minute emer­gen­cies, is gener­ally a last resort; during the primar­ies the deploy­ments came at the request and direc­tion of elec­tion offi­cials. There should be less need for similar deploy­ments this Novem­ber, as elec­tion offi­cials have been work­ing hard to recruit new poll work­ers. (In the event that guard members are needed to fill staff­ing gaps, they should wear civil­ian clothes and their duties should be limited to those of poll work­ers.)

Guard units may also be deployed in “hybrid” status, in which they serve a federal mission set by the pres­id­ent or secret­ary of defense (and are paid with federal funds) while remain­ing under state command and control. foot­note27_98kd9q8 27 See, e.g., 32 U.S.C. § 502(f).  State governors, however, must consent to use their guards for the mission in ques­tion. foot­note28_kqi2uc7 28 See 32 U.S.C. § 502(f) (provid­ing for duty on “oper­a­tions or missions under­taken by the member’s unit at the request of the Pres­id­ent or Secret­ary of Defense”).  Moreover, guard units in this status argu­ably act under the author­ity of the pres­id­ent or secret­ary of defense and there­fore would still be subject to the crim­inal prohib­i­tion on federal milit­ary officers station­ing “armed men” at the polls. Guard units in hybrid status are still subject to state laws limit­ing their use at polling stations, as well as all federal and state voting rights and anti­discrim­in­a­tion laws.

Off-Duty Law Enforce­ment

Bottom Line: Off-duty members of the milit­ary, National Guard, and law enforce­ment are entitled to vote in person, serve as poll work­ers, and engage in other demo­cratic activ­it­ies at the polls, but they must follow the same rules as other members of the general public.

The Concern: Decades ago, the Repub­lican Party recruited off-duty police officers to show up to the polls armed and wear­ing offi­cial-look­ing uniforms to engage in so-called “ballot secur­ity” efforts target­ing Black and Latino communit­ies. As a result of the Demo­cratic Party suing to chal­lenge the prac­tice, the GOP’s oper­a­tions were monitored by a federal court for 35 years. In 2017 the court order that provided for that monit­or­ing expired. This year, in the lead-up to the first pres­id­en­tial elec­tion free from such over­sight, the Repub­lican National Commit­tee is reportedly prepar­ing to send out tens of thou­sands of poll watch­ers. The concern is that history will repeat itself.

What’s Legal and What Isn’t: Poll watch­ers are allowed to monitor elec­tions in most states. Off-duty milit­ary members and law enforce­ment may gener­ally take part in such activ­it­ies, and of course may also be at the polls to vote them­selves.

But, as noted, voter intim­id­a­tion and discrim­in­a­tion are illegal and often crim­inal. Many laws, such as the VRA, apply to private as well as govern­mental actors, and so would cover indi­vidu­als who are off duty and acting in their personal capa­cit­ies.

Many states also flatly prohibit openly carry­ing a gun into a polling place. foot­note29_pbwt86m 29 National Confer­ence of State Legis­latures, “Polling Places,” Aug. 18, 2020, https://www.ncsl.org/research/elec­tions-and-campaigns/polling-places.aspx.  Some states, includ­ing Texas, prohibit carry­ing concealed weapons as well. foot­note30_e6t5kwz 30 Tex. Penal Code Ann. § 46.03(a)(2) (West 2020).  Many states prohibit weapons in specific types of polling places, such as govern­ment build­ings. foot­note31_bnhma85 31 Giffords Law Center to Prevent Gun Viol­ence, “Loca­tion Restric­tions,” accessed Sept. 28, 2020, https://giffords.org/lawcen­ter/gun-laws/policy-areas/guns-in-public/loca­tion-restric­tions/.  Others have specific rules against bran­dish­ing a fire­arm in a way that could intim­id­ate voters. foot­note32_5lncwq8 32 See, e.g., Pennsylvania Depart­ment of State, “Guid­ance on Rules in Effect at the Polling Place on Elec­tion Day,” 2016, 3 https://www.dos.pa.gov/VotingElec­tions/OtherSer­vice­sEv­ents/Docu­ments/DOS%20GUID­ANCE%20ON%20RULES%20IN%20EF­FECT%20AT%20THE%20POLLING%20PLACE%20ON%20ELEC­TION%20DAY%2010–16.pdf (“Indi­vidu­als inside or outside the polling place who behave aggress­ively with a fire­arm or who osten­ta­tiously demon­strate that they are carry­ing a fire­arm and that beha­vior either is inten­ded to or has the effect of intim­id­at­ing voters will be removed, repor­ted to the appro­pri­ate author­it­ies for invest­ig­a­tion and prosec­u­tion.”).

The tactics that the RNC used to intim­id­ate Black and Latino voters are just as illegal today as they were in the 1980s. Anyone who know­ingly engages in such tactics can and should face legal consequences.

Private Mili­tias and other Vigil­ante Poll Watch­ers

Bottom Line: Voter intim­id­a­tion by poll watch­ers is illegal, and there are legal restric­tions on who can engage in poll watch­ing and rules in place to ensure account­ab­il­ity.

The Concern: During the first pres­id­en­tial debate, Pres­id­ent Trump called for his “support­ers to go into the polls and watch very care­fully,” and specific­ally sugges­ted that they do so in Phil­adelphia. In the same debate, he told the Proud Boys, a viol­ent extrem­ist organ­iz­a­tion, to “stand by.” Espe­cially in light of the expir­a­tion of the consent decree restrict­ing the Repub­lican Party’s “ballot secur­ity” oper­a­tions, these state­ments have led to concerns of vigil­ante poll watch­ers enga­ging in voter intim­id­a­tion.

Why It’s Illegal: Not just anyone can show up and watch the polls. Most states limit who can serve as a poll watcher, often to appoin­ted repres­ent­at­ives of a candid­ate or a party and, in some cases, to neut­ral, nonpar­tisan observ­ers. In some states, such as Pennsylvania, poll watch­ers must be registered to vote in the county where they seek to observe the polls. These limits help deter miscon­duct and ensure account­ab­il­ity. In addi­tion to limit­ing who can serve as a poll watcher, most states have strict limits on what poll watch­ers can do. States includ­ing Geor­gia, Flor­ida, and Michigan prohibit poll watch­ers from speak­ing to voters. foot­note33_nh0g­fr8 33 Ga. Code Ann. § 21–2–408(d); Fla. Stat. Ann. § 101.131(1); and Michigan Depart­ment of State Bureau of Elec­tions, The Appoint­ment, Rights and Duties of Elec­tion Chal­lengers and Poll Watch­ers (Sept. 2020), 12, https://www.michigan.gov/docu­ments/SOS_ED_2_CHAL­LENGERS_77017_7.pdf.  Many states allow poll watch­ers to chal­lenge voter eligib­il­ity, but they must follow specified proced­ural and substant­ive limits. Poll watch­ers who abuse their roles may be ejec­ted from the polling place.

State and local laws also restrict armed mili­tias from appear­ing at the polls. Most states have laws or consti­tu­tional provi­sions prohib­it­ing private groups from enga­ging in unau­thor­ized para­mil­it­ary or law enforce­ment activ­it­ies. Geor­getown Law School’s Insti­tute for Consti­tu­tional Advocacy and Protec­tion (ICAP) published a 50-state guide docu­ment­ing the laws that state and local govern­ments can use to stop private mili­tias from enga­ging in para­mil­it­ary activ­it­ies in public spaces. foot­note34_c07i­fnm 34 “Prohib­it­ing Private Armies at Public Rallies: A Cata­logue of Relev­ant State Consti­tu­tional and Stat­utory Provi­sions,” Insti­tute for Consti­tu­tional Advocacy and Protec­tion, Septem­ber 2020, https://www.law.geor­getown.edu/icap/wp-content/uploads/sites/32/2018/04/Prohib­it­ing-Private-Armies-at-Public-Rallies.pdf. ICAP has also published fact sheets for every state with recom­mend­a­tions for the public regard­ing what to do when private mili­tias are observed near polling places. “State Fact Sheets,” Insti­tute for Consti­tu­tional Advocacy and Protec­tion website, https://www.law.geor­getown.edu/icap/our-work/address­ing-the-rise-of-unlaw­ful-private-para­mil­it­ar­ies/state-fact-sheets/.

Armed groups or indi­vidu­als who claim to offer secur­ity services at polling stations will also be in viol­a­tion of state and local laws. Virtu­ally all states have laws that strictly regu­late the provi­sion of private secur­ity services, partic­u­larly armed secur­ity services. These laws typic­ally estab­lish licens­ing and fire­arms-permit­ting proced­ures to ensure secur­ity guards are prop­erly vetted, trained, and insured. Depend­ing on the state, provid­ing secur­ity services without a license can result in civil fines and/or crim­inal penal­ties. foot­note35_y5277ob 35 Links to each state’s licens­ing proced­ures and regu­la­tions can be found at websites promot­ing secur­ity guard licens­ing and train­ing courses, such as secur­ity­guard-license.org and secur­ity­guardtrain­ing.com.

Even apart from all of these limits, both federal and state laws outlaw voter intim­id­a­tion and conspir­acies to prevent eligible Amer­ic­ans from voting, and elec­tion offi­cials are prepared to respond and remove bad actors. State and local elec­tion offi­cials also have plans and proto­cols in place to address any disrup­tions at the polls. Most have strengthened those plans as the threat level has increased. They will not be caught off guard.

Conclu­sion

Federal and state laws clearly prohibit any deploy­ment of the milit­ary, law enforce­ment, or vigil­antes to the polls to intim­id­ate voters or engage in any oper­a­tion unre­lated to main­tain­ing the peace while elec­tions are being held. The pres­id­ent’s sugges­tions that law enforce­ment should act inap­pro­pri­ately or that vigil­antes will storm the polls are simply designed to discour­age voters, partic­u­larly voters of color, from voting and to under­mine faith in our elec­tions. It is import­ant to call out Trump’s comments for what they are: not just calls for illegal action but also attempts at voter suppres­sion. Voters should not be intim­id­ated.

End Notes