Who Watches the Poll Watchers?

Poll watchers are individuals, often appointed by a candidate or by a political party, who observe the election process — whether at polling places or as ballots are reviewed and counted. Each state has its own laws on what watchers may and may not do, what qualifications and training they must have, who can appoint watchers, and how many can serve at a given location.

Because watchers may be present when people are voting, most states have measures in place to protect against voter intimidation and voter harassment (on top of federal voter intimidation protections). footnote1_249ejya 1 For example, federal law expressly prohibits anyone from intimidating or harassing a voter (or attempting to intimidate or harass a voter) in order to interfere with his or her right to vote or vote as he or she chooses. 18 U.S.C. § 594.  For example, some states expressly prohibit watchers from interacting with or assisting voters. footnote2_ue9qm84 2 See e.g., Md. Code, Elec Law § 10–311(d); Va. Code § 24.2–604.4(E).  Others require watchers to stay within a certain area of the polling location. footnote3_fa9fpt4 3 See e.g., Ark. Code § 7–5–312(e); S.C. Code § 7–13–860.

As of April 15, 2021, state lawmakers have introduced at least 40 bills in 20 different states that would expand the powers of poll watchers. footnote4_5wzzp9k 4 AZ SB 1595; FL SB 656; GA HB 531; GA SB 74; GA SB 202; HI HB 853; IA HF 590; IA SF 413; IL HB 3553; LA HB 599; MA HB 816; MD HB 1145; MI SB 276; MI SB 309; MO HB 738; MT SB 93; NH SB 89; NV AB 163; NV AB 248; NY AB 1493; NY SB 1027; OR SB 824; PA SB 322; TX HB 6; TX HB 1128; TX SB 1591; TX HB 2601; TX HB 3107; TX HB 3970; TX HB 4364; TX SB 7; TX SB 598; TX SB 605; TX SB 1215; TX SB 1535; TX SB 1607; TX SB 1608; TX SB 1611; WA HB 1554; WI SB 210. Of those, 12 bills are moving in six states. footnote5_d8anhy4 5 MO HB 738; MT SB 93; NH SB 89; NY SB 1027; TX HB 6; TX HB 1128; TX HB 3107; TX HB 3970; TX HB 4364; TX SB 7; TX SB 598; WI SB 210. “Moving” means the bill is still live and has passed one or both chambers or has had some sort of committee action — namely a committee hearing (already held or scheduled), an amendment, or a committee vote.  The plurality of bills introduced and currently moving have been filed in Texas. Two bills have been enacted into law (GA SB 202, IA SF 413).

Expanded Observation Access

At least thirty-three bills have been introduced to give watchers more authority to observe voters and election officials, with fewer limitations on their actions at polling places and other locations, increasing the possibility of voter intimidation and harassment. footnote6_c5qnzlr 6 AZ SB 1595; GA HB 531; GA SB 74; GA SB 202; HI HB 853; LA HB 599; MA HB 816; MD HB 1145; MI SB 309; MT SB 93; NH SB 89; NV AB 163; NV AB 248; NY AB 1493; NY SB 1027; OR SB 824; PA SB 322; TX HB 6; TX HB 1128; TX HB 3107; TX HB 3970; TX HB 4364; TX SB 7; TX SB 598; TX SB 605; TX SB 1215; TX SB 1535; TX SB 1591; TX SB 1607; TX SB 1608; TX SB 1611; WA HB 1554; WI SB 210.  Eleven such bills are moving. footnote7_7qj1qw1 7 MT SB 93; NH SB 89; NY SB 1027; TX HB 6; TX HB 1128; TX HB 3107; TX HB 3970; TX HB 4364; TX SB 7; TX SB 598; WI SB 210.  One bill (GA SB 202) has been enacted into law.

Bills Giving Poll Watchers Greater Access in Polling Places

Twelve bills have been introduced to expand poll watcher access in polling locations, four of which are moving.

• LA HB 599 (in committee) allows both candidates and political parties to have watchers at every polling place and allows parties to designate a “super watcher” who can serve in every polling place in every parish.

• MI SB 309 (in committee) establishes certain rights for challengers, including to be close enough to election officials to observe the process from a “reasonable distance” and to challenge the manner in which election inspectors are performing their duties. footnote8_58aya07 8 MI SB 309 includes separate definitions for “watchers” and “challengers,” with “challengers” allowed to serve a similar observational function as “watchers” do in most states. For simplicity, we use the term “watcher” here.

• NV AB 248 (dead) would have required election officials to accommodate partisan watchers at polling locations and at the testing of voting machines.

• TX HB 6 (reported favorably out of committee) gives watchers permission to stand close enough to “see and hear” voters and election officials’ activities, except for voters casting a ballot. HB 6 also prohibits election officials from removing a watcher from polling locations unless the watcher has engaged in an election offense.

• TX HB 1128 (reported favorably out of committee) & TX SB 605 (in committee) provide that watchers can be presented in all polling locations and wherever ballots are counted.

• TX SB 7 (passed Senate) requires that watchers have “free movement” throughout polling locations. The bill gives watchers permission to stand close enough to “see and hear” voters and election officials’ activities, including during curbside voting, as long as a watcher does not go in the polling booth with the voter.

• TX SB 1215 (in committee) requires that watchers have “free movement” in any polling location in which the watcher is serving.

• TX SB 1607 (in committee) & TX SB 1608 (in committee) give any watcher at a polling place the ability to inspect each copy of the vote counts at that location.

• TX SB 1611 (in committee) gives watchers permission to stand close enough to “see and hear” voters’ and election officials’ activities (provided that watchers cannot enter the voting booth), and prevents watchers from being denied “free movement” at polling places.

• WI SB 210 (passed Senate) requires watchers to be within three feet of where voters check in at polling places and three feet from any table where a voter may register to vote, whether at a polling place or otherwise. SB 210 also requires watchers have access to all stages of the voting process.

Bill Allowing Poll Watchers to Enter Vehicle to Observe Voting

One bill, TX SB 1591, has been introduced that would allow watchers to enter the car in which curbside voters are voting if there is more than one voter in the car and the car can accommodate more than five passengers.

Bills Expanding Watcher Access in Ballot Counting Locations and Other Sites

Thirty bills have been introduced to give watchers greater access to the ballot counting process, ballot processing activities (e.g., signature verification, notice and cure, ballot drop off, ballot handling and processing), and voting data processing. Eleven bills are moving, and one bill was enacted into law (GA SB 202).

• AZ SB 1595 (dead) would have allowed watchers to be present when ballots require adjudication (e.g., if the voter’s choice for a particular election is not immediately clear) within a close enough distance for the watcher to observe any markings and determinations.

• GA HB 531 (dead), as introduced, would have mandated that watchers be able to fairly observe the tabulation of ballots and requires the candidate, political party, or political group that appointed the watcher to provide training to all watchers.

• GA SB 74 (dead) would have given poll watchers full access to tabulation centers and limited the ability of officials to restrict watchers’ movements or activities.

• GA SB 202 (enacted) mandates that watchers be able to fairly observe procedures at ballot tabulation centers.

• HI HB 853 (dead) would have required watchers to be present wherever ballots are being handled or counted.

• LA HB 599 (in committee) prohibits watchers from being removed from a ballot counting location until all ballots are counted, even if the counting process has to be put on hold because of technical issues or unforeseen interruptions.

• MA HB 816 (in committee) requires that two watchers from different political parties oversee the counting of absentee and early ballots, verify voters’ signatures, and verify the final vote count.

• MD HB 1145 (dead) would have allowed candidates or party committees to inspect and challenge absentee ballot signatures.

• MT SB 93 (passed both chambers) gives watchers permission to be present at all ballot drop-off locations.

• NH SB 89 (passed Senate) gives watchers the right to observe the processes of opening ballot envelopes and reviewing voter affidavits.

• NV AB 163 (dead) would have mandated that no official could deny access to any person who wants to observe the counting procedure. It would have removed a statutory provision that allows for removal if a person is interfering with ballot processing.

• NV AB 248 (dead) would have required election officials to accommodate partisan watchers at polling locations, central vote counting locations, and central ballot receiving locations.

• NY SB 1027 (passed Senate) & NY AB 1493 (in committee) allow watchers to be present at meetings where absentee ballots are being processed.

• OR SB 824 (in committee) requires that election officials permit watchers to be present when absentee ballots are printed and placed in envelopes to be mailed to voters.

• PA SB 322 (in committee) allows watchers to be within at least six feet of “pre-canvassing” proceedings, as long as they do not impede the pre-canvassing process.

• TX HB 6 (reported favorably out of committee) allows watchers to observe voters delivering absentee ballots when returning their ballots in person, including how voters deliver ballots and how election officials make decisions about the delivery of ballots. The bill also allows watchers to observe the counting of votes and the sealing and transfer of memory storage devices used in voting equipment (e.g., memory cards, flash drives, etc.).

• TX HB 1128 (reported favorably out of committee) & TX SB 605 (in committee) provide that watchers can be presented wherever ballots are counted.

• TX HB 3107 (committee hearing held) allows watchers to be present to observe the formal verification of voters’ signatures on absentee ballots.

• TX HB 3970 (committee hearing held) allows watchers to observe the process by which election officials receive and open absentee ballots and to observe how election officials decide to accept an absentee ballot.

• TX HB 4364 (public hearing scheduled) gives watchers permission to observe meetings of signature verification committees. It also allows watchers to observe the sealing and transfer of memory storage devices used in voting equipment (e.g., memory cards, flash drives, etc.).

• TX SB 7 (passed Senate) & TX SB 1611 (in committee) require that watchers have “free movement” in any location where they serve and give watchers permission to stand close enough to “see and hear” election officials’ activities.

• TX SB 598 (passed Senate) requires that an audit be conducted after select statewide elections and gives watchers the right to be present for the audit procedures.

• TX SB 1215 (in committee) requires that watchers have “free movement” throughout polling locations and ballot counting locations, or any other location where they are serving.

• TX SB 1535 (in committee) gives watchers the right to observe the signature verification process; creates a process to notify voters of signature issues with absentee ballots and an opportunity to cure; and allows watchers to observe this “notice and cure” process.

• TX SB 1591 (in committee) allows watchers to be near enough to election officials to observe the formal verification of voters’ signatures on absentee ballots.

• WA HB 1554 (in committee) requires that watchers be allowed to observe all election audit processes, including the locating of ballots at precincts and the sorting and counting of ballots. 
   
• WI SB 210 (passed Senate) requires watchers have access to all stages of election process, including the canvassing of absentee ballots.

Recording

Nine bills have been introduced — one of which is moving (TX SB 7) — to allow watchers to take photographs or video, including of voters, or that establish other means of recording voting and election processes.

• IL HB 3553 (in committee) requires that all poll watchers wear body cameras.

• MI SB 276 (in committee) allows watchers to record the tabulation of votes while making it a misdemeanor to impede watchers from recording the vote tabulation process and making it a misdemeanor for watchers to photograph or record a voter entering, leaving, or voting at a polling place or a voter’s identification.

• MI SB 309 (in committee) allows watchers to use electronic devices such as smartphones at polling places and ballot counting locations, as long as the watcher does not interfere with a voter’s right to vote or to vote a secret ballot.

• TX HB 2601 (in committee) gives watchers authority to take pictures and record video within polling locations, including of voters, as long as watchers do not record someone in the process of voting or if the recording infringes on the secrecy of the voter’s ballot.

• TX SB 7 (passed Senate) eliminates the prohibition on poll watchers possessing devices to record sound and images. SB 7 also gives watchers authority to take photos and record video at polling locations and allows watchers to record a voter whom the watcher believes is receiving unlawful voting assistance, as long as the watcher does not record the voter’s ballot. Finally, SB 7 allows watchers to submit photos, video, or audio recordings of activity they believe to be unlawful to the secretary of state, who must then send the material to the attorney general upon request.

• TX SB 1535 (in committee) allows watchers to record video or audio while ballots are being counted, despite a general prohibition against recording video or audio.

• TX SB 1591 (in committee), TX SB 1607 (in committee) & TX SB 1611 (in committee) remove the ban on watchers carrying active recording devices with them in polling places or election locations, and permit a watcher to record voters so long as the watcher reasonably believes a voter is receiving unlawful assistance and so long as the watcher does not capture the voter’s ballot.

Criminal Penalties

Nine bills have been introduced that establish criminal penalties for obstructing watchers or refusing to allow watchers entry into a polling location or other election location. Three of these bills are moving (TX HB 6, TX HB 4364, and TX SB 7), and one has been enacted into law (IA SF 413).

• IA SF 413 (enacted into law) makes it a criminal offense for an election official to obstruct a watcher’s activities.

• IA HF 590 (dead) would have made it a criminal offense for an election official to obstruct a watcher’s activities.

• TX HB 6 (reported favorably out of committee) makes it a criminal offense for an election official to distance or obstruct the view of a watcher if it makes the watcher’s observation ineffective, or to refuse to accept the required service of a watcher at a polling location or counting location.

• TX HB 4364 (public hearing scheduled) makes it a misdemeanor for an election official to intentionally or knowingly refuse to accept the required service of a watcher in a polling location or counting location.

• TX SB 7 (passed Senate) makes it a criminal offense for an election official to distance or obstruct the view of a watcher if it makes the watcher’s observation ineffective. SB 7 also makes it a misdemeanor for an election official to refuse to accept the required service of a watcher in a polling location or counting location. Finally, SB 7 allows watchers to file suit seeking an injunction to obtain access to a polling location or ballot counting or processing location.

• TX SB 1215 (in committee) makes it a misdemeanor for an election official to refuse to accept the required service of a watcher in a polling location or counting location.

• TX SB 1591 (in committee) makes it a state jail felony, instead of a misdemeanor, to obstruct or distance a watcher from election activities. It establishes that the enforcement of social distancing is not a defense.

• TX SB 1607 (in committee) & TX SB 1611 (in committee) make it a criminal offense to distance or obstruct a watcher if it makes the watcher’s observation ineffective.

Watcher Residency Requirements

Five bills have been introduced, one of which (MO HB 738) is moving, that loosen a residency requirement to be a watcher.

• FL SB 656 (in committee) allows watchers to serve outside of their county of residence if they are a registered Florida voter and member of the Florida Bar.
   
• MO HB 738 (passed House) eliminates the requirement that a watcher reside in the designated jurisdiction.

• TX SB 1535 (in committee) eliminates the requirement that watchers must be a resident of the precinct where they will serve. It replaces that restriction with a requirement that the watcher be a registered voter of the territory served by a polling place or other site.

• TX SB 1607 (in committee) & TX SB 1611 (in committee) remove the requirement that a watcher has to be a qualified voter of the county where they are serving, leaving only the requirement that the watcher be a qualified voter of the state.

Other: Police Presence

Two bills have been introduced in Texas (TX SB 1607 & TX SB 1608) that would allow poll watchers to request a trained peace officer at a polling location to enforce election laws or prevent an election law violation.