As the Black election judge in a majority white Texas County, Anita Phillips is used to tense situations at her polling place, an early voting site on the former campus of a historically Black college.
During the 2018 election, Phillips was escorted to her car by law enforcement every evening because of the harassment she received, including from, she says, the partisan poll watchers who showed up to observe her voting site. In 2020, she was forced to eject a poll watcher who repeatedly was caught rifling through election papers on her desk
“I felt like a babysitter inside of a daycare full of toddlers,” Phillips told TPM as she reflected her experiences as an election judge in Waco, the largest city in McLennan County.
“I was constantly having to say, ‘Ma’am you cannot stand that close where you can see the ballot marked’; ‘Ma’am you cannot sit here behind the election book where you can see the voters’ personal information’; ‘Ma’am you cannot go through the paperwork on the judges’ table.”
But Republican legislation working its way through the Texas statehouse could escalate things to a whole new level. The measures significantly loosen the rules for the partisan poll watchers chosen by political parties ostensibly to monitor that election rules are being followed. The new proposed poll watcher regime could usher in a whole new wave of intimidation of voters of color, critics of the bill say.
“Latinos are the historical targets of vigilante activity in and around polling places in Texas,” Nina Perales, the vice president of litigation at the Mexican American Legal Defense and Educational Fund, told TPM. “These measures that are being proposed right now are going to open the door to vigilante voter suppression activities in the polling place.”
They’re being pushed among a dizzying array of restrictive voting proposals in Texas, and at least one of the bills could get a vote on the Texas Senate floor in the days to come.
The poll watcher provisions appear, in part, aimed at validating President Trump’s false claims that Republican poll watchers were prevented from observing supposed mass fraud in Pennsylvania. But in Texas, accusations have raged for years that aggressive behavior by poll watchers — including those deployed by prominent voter fraud alarmist groups — was intimidating voters. Harassment by poll watchers has only increased in recent elections, some Texas election officials have said. Meanwhile in the 2020 election, Texas Attorney General Ken Paxton backed poll watchers who wanted to be within six feet of voters or election officials, despite an effort by election officials to maintain social distancing at polling places to keep voters socially distant for the pandemic.
The Senate Bill, known as SB7, would allow poll watchers at election sites to operate recording devices, which is currently prohibited for anyone within 100 feet of a polling place.
The bill also changes the current rules for where poll watchers are allowed to position themselves in their monitoring activities; currently watchers are authorized to observe election activity from a “conveniently near” location, but the Senate bill sanctions “free movement” around the polling place and says they’re entitled to be as close as it takes to “see and hear” what’s going on.
The Senate bill will hamstring an election judge’s ability to decide when poll watchers are becoming a nuisance, particularly through a provision that threatens fines and jail time if election workers refuse to accept a poll watcher.
A House bill, known as HB6, has some similar provisions. It says poll watchers can only be removed if they are engaged in fraud of the sort outlawed specifically in the state’s election code. Civil rights advocates believe that will give poll watchers impunity to to engage in all sorts of intimidating tactics as long as their conduct is not covered explicitly by the election fraud statute.
“Instead of the election judge being in charge of the polling place, the poll watchers now run it and can do whatever they want, short of election fraud or violence against a voter,” Emily Eby, a staff attorney for the Texas Civil Rights Project, told TPM.
Upsetting The ‘Balance of Power’
At a House committee hearing last week, the question came up about what election judges can do if a poll watcher is engaged in disruptive conduct — including in criminal behavior like assault or disturbing the peace — that isn’t technically election fraud.
The bill’s sponsor, Rep. Briscoe Cain (R), struggled with the hypothetical, and suggested that election officials would have to rely on police officers to step in to handle those situations.
Cain said that if poll watchers were engaged in criminal conduct not included in the election code, then that would be a “legitimate reason” for them to be removed. But, he said, “it is just difficult to entrust an election judge, who is a volunteer, with enforcement of the penal code,” though he eventually conceded that election judges should be able to remove poll watchers committing crimes like assault.
(Neither Cain’s office, nor the office of the Senate bill sponsor, Republican Sen. Bryan Hughes, made the lawmakers available to talk to TPM about the measures.)
Cain’s suggestion that election judges should leave it to the police to deal with objectionable watcher conduct drew criticism of civil rights advocates who spoke to TPM. They pointed out that many polling places won’t have law enforcement on site. And calling the police in is not an ideal solution for dealing with a situation where a person of color is being targeted with harassment, they said, given the justified distrust minority communities have of law enforcement.
Some civil rights lawyers have also interpreted the legislation to mean that if an election judge calls on a police officer to remove a poll watcher, that judge will still be violating the bill’s non-removal provisions.
“There’s no rule that an election judge can put forth that a poll watcher is required to respect and that upsets the balance of power, and recent history shows us this will be used to disqualify minority voters,” Texas NAACP president Gary Bledsoe told TPM.
‘No One Is Going To Feel Safe’
The new legislation has also attracted heat for its documentation requirements for voters with disabilities who want to vote by mail. For voters with disabilities or language barriers who bring people to assist them at in-person polling places, SB7 requires that those assistants submit additional paperwork explaining who they are and why they’re there.
The measures targeting voters in need of assistance collide with the poll watcher provisions in the Senate bill, which explicitly allows watchers to record voters who are at their voting station if they’re receiving assistance. It also authorizes poll watchers to observe curbside voting, which is often used by voters that face physical challenges or health concerns preventing them from entering a polling place.
“The poll watcher can peer into the car and listen to the voter receiving help, ‘This is how you fill out your ballot,’ etc., up until they mark the ballot,’” Perales said. She said those provisions, especially coupled with forms required from assistants, violate the privacy of voters with medical conditions, and likely run afoul of federal law.
The legislation prohibits poll watchers from recording the information on voters’ ballots and it bars watchers from observing curbside voters as they’re marking their ballots. But there is also significant skepticism about how enforceable those limits on recording are, given the increasing sophistication of phone cameras, and the other provisions in the legislation that discourage election judges from reining in questionable poll watcher behavior.
Phillips, the election judge, said that given the stressful situations that election workers are already facing, the recording provision might be the straw that breaks the camel’s back.
“I imagine that there will be a lot of judges and election workers that will quit with that new law, because no one is going to feel safe,” she said.