Open-Carry and Election Law

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Here’s one topic I’ve been thinking about and which we’re going to be talking about next week. Where do state laws on voter suppression and open-carry intersect with federal laws on voter intimidation and voting rights?

You saw this incident last week where two Trumpers stood outside a Democratic campaign office in Virginia for twelve hours holding firearms. This was obviously menacing behavior. And this takes on a new dimension, both substantively and in terms of federal law, when it’s tied to elections. But it was also completely legal under state firearms laws.

We know Donald Trump now repeatedly asks his supporters to go to minority precincts on election day to search for signs of voter fraud and attempts to steal the election. Today his chief surrogate Rudy Giuliani told Jake Tapper that Democrats are able to steal elections because they “control the inner cities.” So there’s no longer much attempt to be subtle about warning that black people are going to steal the election for Hillary Clinton.

Voting officials in a number of open-carry states say it wouldn’t necessarily be against the law if Trumpers did some version of what happened in Virginia outside polling places. It wouldn’t necessarily be protected either. It would be up to the local election official to decide if it amounted to intimidation or interference.

Under state law this may well be the case. But federal law Trumps state law and the federal government has an extensive legal mandate to prevent election interference and voter intimidation, especially, though not exclusively, where African-Americans are the targets.

The kind of ‘poll-watching’ Trump is encouraging is in the great majority of cases illegal – wildly more so if it involves doing so with firearms. So is the federal government taking steps now to protect the polls? How does it plan to approach cases where firearms clearly amount to menacing behavior but state law gives people the right to carry firearms pretty much wherever they want as long as they are not openly brandishing them or pointing them in a threatening manner?

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Josh Marshall is editor and publisher of TalkingPointsMemo.com.
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