Rolling up to one of the most divisive presidential elections in modern history, cities and states across the nation have plans in place and expert guidance on how to handle voter intimidation.
The U.S. Department of Justice explains that voter intimidation is conduct intended to compel prospective voters to vote against their preferences, or not vote at all, through activities calculated to instill fear. That might be armed militia near a polling place, someone photographing voters as they enter or leave their polling place or written forms of intimidation. Some actions that would be legal at other times may be unlawful if they are intended to intimidate voters.
Georgetown Law’s Institute for Constitutional Advocacy and Protection, or ICAP, has developed a guide for law enforcement and voting officials to use to recognize voter intimidation, with steps they can take to thwart it. ICAP Legal Director Mary McCord hosted a news briefing on the guide, inviting officials from around the country to participate.
“We are seeing more and more officials take action against groups organizing together while armed to do a variety of different activity around elections,” she said. Minnesota Attorney General Keith Ellison, for example, recently got assurance that Atlas Aegis and his Tennessee-based security company would not recruit or provide private security near polling places. Aegis had advertised for former special ops soldiers to join his company to protect ballot boxes.
A well-armed militia, as mentioned in the Constitution’s Second Amendment, allows for a governor or government to call on a militia for help. But it has no protection to do so on its own, McCord said.
In St. Petersburg, FL, two armed men in uniforms set up a tent outside an early voting location just days ago, claiming they had been hired by the Trump campaign, something the campaign denied. While Pinellas County Sheriff Bob Gualtieri said the two individuals did not violate any laws, St. Petersburg Mayor Rick Kriseman disagreed, according to WFLA, New Channel 8. “I can’t say I agree with him on that. There’s zero reason for anyone to be armed – openly-armed – out in front of a polling place. I can’t think of any justification for that.”
In Michigan, Secretary of State Jocelyn Benson issued instructions banning open carry at polling places and within 100 feet of polling places. Even outside that range, she said, open carry is banned in the vicinity. Her authority to issue that directive is being challenged in court.
And a rally planned in Montgomery, NY, by the American Patriot Counsel was moved over concerns of proximity to voters after the group advocated the open carry of long guns.
States do have laws with teeth and an arsenal of legal tools at their disposal to push back, McCord said.
And they are using them. And in the case of law enforcement, they are working to end voter intimidation without becoming part of the problem.
“We know in some places, law officers at polling places can be intimidating to some,” said Michael Harrison, Baltimore Police Department Commissioner, Vice President of Police Executive Research Forum and former Superintendent of the New Orleans Police Department.
“We, police executives around the country, have been planning practicing and creating protocols to ensure election safety and voter safety in a way that doesn’t create intimidation by police,’’ he said. “Our job is to enforce the law and keep the people safer. Law enforcement will not tolerate voter intimidation or harassment. Do not try it here in Baltimore or anywhere else to frighten, intimidate or harass any voter.”
He said officers will not be highly visible but will stand at the ready to de-escalate any tensions and to respond if the need should arise. He said departments are coordinating across the country to get guidance to officers on how to handle these situations.
Chicago Mayor Lori E. Lightfoot added that despite the rhetoric and rumors that federal agencies will not cooperate with local officials, she has not seen any evidence of that. The FBI, for example, is working closely with the Chicago Police Department to protect voters against all acts of intimidation, she said.
Civil rights groups are also on the lookout.
“One thing the civil rights community has been encouraging is to really engage community stakeholders in places where de-escalation may be needed,” said Vanita Gupta, President and CEO of The Leadership Conference on Civil and Human Rights and former head of the Justice Department’s Civil Rights Division. “It is important to understand the history for some communities that find the presence of law enforcement at polls intimidating. Right now, the important thing is for voters to not be distracted, scared and confused.”
Nevada Attorney General Aaron Ford said voter intimidation will not fly in his state.
“We work closely with election officials, law enforcement and others so we are ready on, before and after,’’ he said. “I stay ready, so I don’t have to get ready. Our job is to protect and defend you and your vote. We have an election integrity task force created a few years back comprised of the Secretary of State’s office, my office, federal, state and local agencies, so we can respond in real time to incidents.”
State laws against armed militias at polling places help, but there will still be plenty of litigation over the elections, Gupta said.
“For anyone who wants to look at the various nightmare scenarios and the laws that are used, there is a record amount of litigation in the lead-up because COVID-19 threw elections administrators into disarray and their efforts to open voting options. All litigation is aimed at averting problems after the election. We are in heightened polarized times with a lot of talk about threats. It is important to continuously provide the public with information to show them in time of uncertainty” that they will not be intimidated.
“The goal is de-escalation and using reasonable time, place and manner restrictions to ensure a safe voting experience,” McCord said. “There are letters available on our website in response to armed activity near polling places.”
Anyone who experiences what they believe to be voter intimidation, according to ICAP, can call Election Protection at 866-OUR-VOTE (866-687-8683). Assistance is also available in Spanish at 888-VE-Y-VOTA (888- 839-8682), in Arabic at 844-YALLA-US (844-915-5187), and Asian languages at 888-API-VOTE (1-888-274-8683). A video American Sign Language line is available at 301-818-VOTE (301-818-8683).