Donald Trump is engaging in an unprecedented campaign of voter fraud fear-mongering. Not only is he putting Americans’ trust in the bedrock of U.S. democracy at risk, but what he has urged his supporters to do — in stump speeches across the country — would, if carried out, likely be a form of illegal voter intimidation.
Civil rights groups are already gearing up for an especially tense Election Day. Meanwhile, the federal government has been hobbled by a 2013 Supreme Court ruling in its ability to monitor elections in places with histories of voter intimidation. Of particular concern are states with loose open carry laws, where already, some armed Trump supporters have shown an interest in making their presence known at voting sites.
“The idea that people would be standing outside the polls with guns, or even inside the polls with guns, clearly has the potential to turn people away. There’s a long history of this,” said Deuel Ross, an attorney for the NAACP Legal Defense Fund, which is very active in voting rights litigation.
His group plans to be observing elections in Georgia, Texas, Alabama, Louisiana and South Carolina.
“These are places with a history of voter intimidation and also very liberal gun laws,” Ross said.
Trump has for months complained about the possibility of an election somehow “rigged” against him, but recently, the rhetoric has taken on a more ominous, and even racially-tinged tone, that specifically mentions voter fraud at the ballot box.
Last week, he told a mostly white crowd in Ambridge, Pennsylvania, to “watch other communities, because we don’t want this election stolen from us.” He said at rally in Michigan late last month that his supporters, after they vote, should “pick some other place … and go sit there with your friends and make sure it’s on the up and up.”
It appears that some of his supporters are prepared to heed his call. Steve Webb, a 61-year-old Trump supporter from Ohio, told the Boston Globe he planned to go “watch” from his precinct “for sure.”
“I’ll look for . . . well, it’s called racial profiling. Mexicans. Syrians. People who can’t speak American,” he said. “I’m going to go right up behind them. I’ll do everything legally. I want to see if they are accountable. I’m not going to do anything illegal. I’m going to make them a little bit nervous.”
Two Trump supporters in Virginia last week staged a 12-hour open carry “protest” outside a Democratic campaign office, though they denied they posed any kind of threat. If that sort of the activity is the harbinger of things to come at polling places on Election Day, it could be a violation of federal law.
The Voting Rights Act includes a provision that prohibits any attempt to “intimidate, threaten, or coerce” a person trying to vote, and there’s a section of the federal criminal code banning voter intimidation as well. In theory, that could set up a confrontation between federal voter intimidation laws and state open-carry laws (federal law would generally trump state law). However, according to Kristen Clarke, the president and executive director of Lawyers’ Committee for Civil Rights Under Law, federal laws are rarely ever used to address voter intimidation claims.
“There’s not just much of a history of the federal government using them,” Clarke said, adding that her group, which monitors elections to ensure all eligible voters can cast a ballot, is more reliant on state and local systems to address instances of voter intimidation.
Even though the legal language surrounding voter intimidation doesn’t specifically mention weapons, certain actions with firearms could certainly be interpreted as such, depending on the context, legal experts and voting rights advocates told TPM.
“People going to the polls, and just bringing their guns with them, even it that’s not waving around threateningly, going to a polling place where you have a gun clearly can be intimidating for both black and white voters, because of the history of violence that we’ve seen,” the NAACP LDF’s Ross said.
An Alabama gun rights activist was prosecuted on state voter obstruction charges for bringing a holstered gun to a polling place in the 2014 election, though elsewhere in the state, open-carry has been allowed at election sites.
Some states have rules specifically banning guns in and around polling places. In Georgia, for instance, gun owners are prohibited from carrying their firearms within 150 feet of a polling place. There are other states, however, with no such laws on the books, though guns might be banned in some polling sites by proxy, such as when the polling site is in a weapons-free zone like a school or courthouse.
In many places, however, the law is murky, and it’s a matter, to a degree, of discretion whether someone brandishing a weapon crosses the line into intimidation.
“For most states, the law doesn’t create a lot of specificity about what counts exactly as intimidation in the way that would allow you to know about when carrying a gun crosses the line. It will often depend on the behavior and what the result is,” said Adam Gitlin, a counsel for the Democracy Program at the Brennan Center, a nonpartisan public policy and law institute.
According to Adam Winkler, a UCLA School of Law professor and author of “Gunfight: The Battle Over the Right to Bear Arms in America,” such a determination would be a “a fact-sensitive, context-based decision.”
“Someone openly carrying a firearm into a polling place in rural Montana, where a lot of people may openly carry, might not be viewed as the same intimidation as an open-carry advocate in an urban area, where openly carried guns are rare, standing around the polling places,” Winkler said.
The first line of defense is the poll workers at sites themselves who have the authority in most states to do what it takes to ensure an orderly election, voting right advocates told TPM.
“If otherwise legal carrying of firearms and other weapons actually disrupts the order of the election or intimidates voters, then election officials have the power to stop that,” Gitlin said. “I am not aware of any state where a right-to-carry law explicitly trumps the power of election official to keep order.”
But if they refuse to act, Ross suggested a voter who feels threatened should contact their state elections office or even the local U.S. attorney’s office.
However, the Justice Department’s program to keep an eye on such activity has been hamstrung by the 2013 Supreme Court decision in Shelby County v. Holder, which gutted a provision of the Voting Rights Act that determined which states needed to “preclear” any changes to their elections protocols based on their history of racially discriminatory voting practices. The DOJ interpreted the ruling to have also curtailed its ability deploy election observers to the 11 states previously covered by preclearance. This election, the DOJ will only have its elections monitoring program set up in five states — Alabama, Alaska, California, Louisiana, and New York — where federal court decisions have authorized it do so, Reuters reported this summer.
“That safeguard of having specially-trained individuals on behalf of the federal government inside the polls won’t be in place in many communities this November, creating a potentially toxic and vulnerable situation for some voters,” Clarke said.
It’s worth noting that the Republican National Committee has been under a three-decade-old consent decree — that the Supreme Court in 2013 refused to lift — barring it from engaging in any sort of “ballot security” efforts targeting minorities. The decree is the result of RNC activity decades ago — including the hiring of off-duty cops to patrol around election sites — that Democrats alleged amounted to voter intimidation.
At least one election law expert, UC-Irvine School of Law’s Rick Hasen, has argued that Trump may have violated the decree in his calls for vigilante poll watchers if one interpreted him to be an agent of the RNC. Clarke, meanwhile, called for the RNC case to serve as a guide for what can and cannot be done at the polls in November.
“The spirit of that agreement should be guiding what happens now and the court there was very clear about intimidating impact these efforts to protect the so-called integrity of the process might have on voters, and minority voters in particular,” Clarke said.
Corrected: A previous version of this story misquoted Kristen Clarke. She said, “That safeguard of having specially-trained individuals on behalf of the federal government inside the polls won’t be in place in many communities this November, creating a potentially toxic and vulnerable situation for some voters,”