Crosses the Line

When Poll-Watching Crosses the Line

In years of organizing vote-monitoring efforts around the country, I have seen firsthand how volunteer “challengers” can intimidate and harass even the most seasoned poll workers and voters.

By Jocelyn Benson

s we near another historic presidential election, the fog of anxiety about the election is returning on a scale we haven’t seen in decades.

Donald Trump has repeatedly suggested that the general election may be “rigged” nationwide. He has called on his supporters to monitor the polls on Election Day, and said that voting locations should “have the sheriffs and the police chiefs and everybody watching.” Trump’s running mate, Indiana Governor Mike Pence, doubled down on Trump’s suggestions, telling a New Hampshire audience that “the integrity of ‘one person, one vote’ is at the core of democracy, and that happens one precinct at a time.”

Trump and Pence are partly correct: There is great value in having elections monitored. Poll watching helps to preserve an open, transparent democratic process by ensuring that elections are administered in a manner that protects access while inviting scrutiny. Poll observers can ensure the law is followed, provide support for voters and poll workers in navigating often confusing and ever-evolving election regulations.

But in nearly a decade of organizing vote-monitoring efforts around the country, I have seen firsthand how volunteer monitors—often positioned as “challengers” at the polls—can intimidate and harass even the most seasoned poll workers and voters, interfere with the process, delay voting, and potentially alter the election’s outcome.

Since 2000, when voting irregularities in Florida cast a pall over the entire presidential election, election monitoring has steadily increased in scope and sophistication. And this November, there will likely be more observers in polling places than ever before.

Some will work to ensure that the voting runs smoothly. The Organization for Security and Co-operation in Europe, for example, recently announced its plan for a ten-fold increase in the number of monitors it will place in U.S. polling locations. But others will be there for less altruistic reasons.

Unless states issue clear rules to protect voters from wrongful interference while enabling monitors to observe the vote and provide assistance when needed, this increase in the number of people in the polls—all with varying agendas and intentions—will likely increase chaos and confusion for voters in November.

Though it’s not a federal law, every state in the nation (except West Virginia) allows citizen monitors to be present in polling locations on election day—typically, at least one monitor from each party. In most states, they can’t talk to voters or watch how people vote, but they can see who votes, and report irregularities to outside authorities.

When done properly, election observers operate under a simple principle: Do no harm. They arrive at a polling place with knowledge of the law. Their primary intention is to observe objectively from afar, collect data, and minimize confusion. They intervene only when necessary to help a voter or poll worker clarify the law. They observe and solve problems as they occur, or clarify procedures (for instance, what to do if a voter lacks a photo ID). They focus on ensuring that a voter can cast their ballot, regardless of which candidate they’ll vote for. They ensure no one is wrongly turned away from the polls. They collect information—the causes of long lines, problems with machines, etc.—that can form the basis of data-driven election reforms.

This type of election monitoring is healthy. And in 2016, it’s especially important—for a few big reasons.

First, it is unprecedented that a major-party nominee would question the credibility of the election outcome months in advance. Trump’s suggestion that the presidential race is rigged is already being reflected in voter confidence about the integrity of the vote. In a recent Pew survey of registered voters, just 38 percent of Trump supporters said they were very confident that their votes will be accurately counted; a mere 11 percent of Trump supporters were “very confident” that votes across the country will be accurately recorded. If those numbers hold steady through Election Day, then there could be a sizable portion of the electorate that rejects the legitimacy of the next president—which could seriously damage the stability of American democracy.

Second, November 2016 will be the first presidential vote in 50 years without the guarantee of federal election observers to protect voters from discrimination and intimidation.

Every Election Day since the enactment of the Voting Rights Act in 1965, the Department of Justice has deployed hundreds of trained experts to ensure that citizens’ voting rights are being respected. These observers—frequently sent to polling places with histories of voter discrimination—had full access to polling sites, and were empowered under the authority of the federal government to intervene to enforce the law and protect voters from harassment or intimidation. But this provision was one of the casualties of the Supreme Court’s 2013 decision in Shelby County v. Holder. Now, the Justice Department can deploy election observers only by federal court order.

All the more reason to support Trump’s call for his own observers to monitor elections? Not quite.

It’s useful to ask what Trump’s intent is in deploying poll-watchers. Judging from his public statements and dire predictions of a “rigged” election, Trump does not seem concerned about protecting voters from discrimination or ensuring that all eligible voters are able to cast their ballots. Instead, he’s concerned that he will lose. Informed by the candidate’s “rigged” rhetoric and suggestions that there is widespread voter fraud, Trump’s observers seem primed to mainly challenge voters’ eligibility.

Trump seems to be advocating for a type of election monitoring that relies on volunteers to use deceptive practices that are often used to prevent people of color from voting. Voter suppression has changed since the era of literacy tests and poll taxes. In 2016, suppression occurs in two distinct stages: one before the election, and one at the polling locations themselves.

Stage one often takes the form of voter deception—attempts to mislead voters in an attempt to discourage them from casting ballots. Days before the 2008 presidential vote, for instance, false notices were mailed to many Democratic voters in Virginia advising them that Election Day was moved from Tuesday to Wednesday. Similarly, in Milwaukee in 2004 and Philadelphia in 2008, African-American neighborhoods were blanketed with mysterious fliers indicating that voters with unpaid child support or parking tickets could be arrested upon their arrival at their polling stations. These are clear attempts to discourage voter turnout.

Stage two, on Election Day itself, inflicts a harm that is deeper and more immediate, as voters stand directly face-to-face with those seeking to prevent them from voting. Sometimes, this takes the form of challenging a voter’s legitimacy based on their race or ethnicity. During a local election in Michigan in 1999, Arab-American voters were singled out and challenged by election monitors who questioned their citizenship when they arrived at the polls. Similarly, challengers in Washington state accused hundreds of citizens of being illegal immigrants and ineligible voters because they had Hispanic or Arabic-sounding surnames.

Other times, their efforts at polling locations are about voter intimidation: In 2003, African-American voters in Philadelphia encountered men with official-looking-but-fake federal officer credentials asking them for certain forms of identification before they voted. Well-known anti-immigrant activists in Arizona took these tactics to the next level in 2006, bringing clipboards, a camcorder and a gun to polling places with large numbers of Hispanic voters; they picked out Hispanic voters and approached them to take photographs, claiming that it was part of an effort to identify illegal immigrants and felons.

Whereas legitimate, healthy poll-watching does no harm, these sorts of suppression tactics inflict it. It makes the process of exercising one’s voting rights extremely uncomfortable, and, at worst, deters eligible voters from casting their ballots, thus altering the outcome of the election. While it is impossible to quantify how many American voters suppression tactics discourage, we know these deceptive and intimidating acts cause confusion, create delays, and discourage eligible citizens from exercising the right to vote.

Many people worry that this is what Trump really has in mind with his poll workers.

On August 9, Trump told a Pennsylvania audience that without voter ID laws, there will be many people who show up to vote “15 times” for Hillary Clinton. If that is the mindset that a Trump volunteer has when they observe an election, then it’s not difficult to imagine how they might question the voting rights of innocent citizens on unfounded suspicions of ineligibility—lengthening lines, causing delays and embarrassing otherwise-eligible voters. In other words, Trump’s worry is not that legitimate voters will be prevented from casting a ballot; his concern is that they will vote.

To ensure an open and transparent voting process, most states have imposed regulations governing the eligibility of election observers. According to the National Council of State Legislators, those rules vary from restrictions preventing candidates’ family members from serving as observers, to requiring accreditation of anyone seeking to be in the polls on Election Day. Many states limit where monitors can stand and who they can talk to in a polling location—noting that a risk of intimidation occurs the instant a volunteer stops quietly observing and begins interacting with, questioning, and talking to voters.

But the regulations are not universal, and most are vague enough to allow nefarious actions. The difficulty lies in developing polices that encourage transparency, integrity and even scrutiny, while protecting voters’ rights and minimizing chaos and congestion in the polls.

What would those policies look like? To start, states could mandate that all election monitors complete a detailed and comprehensive statewide training program that requires them to demonstrate a sufficient and accurate understanding of the laws governing elections in their state. In addition, improved and uniform poll-worker training should guarantee a comprehensive understanding of the laws they must enforce. They could pair these trainings with a state-administered hotline that encourages voters to report any negative experiences or encounters on Election Day.

Further, states could make it a felony for anyone to intentionally impede or prevent eligible voters from casting their ballots. Surprisingly, most states do not ban deceptive practices or many other types of intimidation at the polls. An effective ban on deceptive practices would make it illegal for anyone to threaten voters, intentionally disseminate false or misleading election information, or any other suppressive tactics that intentionally seek to keep eligible voters from casting their ballots. Accordingly, poll workers should be empowered to immediately remove and ban any election monitor guilty of a deceptive practice or other intentional misconduct in or near a polling place.

Unfortunately, state legislatures typically lack the urgency or wherewithal to enact these types of reforms, and ubiquitous partisan gridlock means they are particularly unlikely to do so in these final months of the 2016 general election. But most statewide election officials have the authority to implement such policies before November without legislative approval—and should do so.

Unless states do what they can to regulate poll watchers’ tactics, the outcome of the presidential election could be affected. It’s true that democracy dies behind closed doors. But it also dies when the doors to political participation are blocked, when Americans lawfully seeking to vote are deterred or wrongfully turned away, or when we fail to ensure that path is free from the congestion of “challengers” who intend to intimidate citizens exercising their most sacred right.