As this election cycle hurtles towards the finish line, the GOP nominee for president has launched a two-part attack on voting: first, by repeatedly asserting that the election is “rigged” against him; and second—drawing on that myth—by calling for his supporters to monitor the polls for “illegal” activity.
“You’ve got to go out, and you’ve got to get your friends, and you’ve got to get everybody you know, and you gotta watch the polling booths,” Mr. Trump said, at a rally in Pennsylvania.
The Trump campaign launched a sign-up form for “Trump Election Observers.” And right-wing organizations like True the Vote—which has previously drawn concerns about intimidation tactics—are offering courses on being an election observer. (This is the group that said, in 2012, that it’s goal was to make the experience of voting “like driving and seeing the police following you.”).
But they should know that election observers and monitors are closely regulated in most states across the nation, and any attempts to intimidate voters risk running afoul of several federal voting rights protections. In particular, any entity seeking to deter voters using intimidation tactics should be aware of three laws: the Ku Klux Klan Act, the Civil Rights Act of 1957, and the Voting Rights Act. Each prohibits voter intimidation.
- Ku Klux Klan Act (KKK Act)—The KKK Act was passed as part of the Enforcement Act of 1871, to ensure compliance with the Fourteenth and Fifteenth Amendments. Passed in response to the violence unleashed by the KKK during Reconstruction, it prohibits any conspiracy to force, intimidate, or threaten a citizen who is lawfully entitled to vote from doing so during federal elections. The KKK Act also creates a right of action for monetary damages. See 42 U.S.C. § 1985(3).
- The Civil Rights Act of 1957— During the Civil Rights Movement, Congress enacted the Civil Rights Act, the first civil rights legislation passed since Reconstruction. Section 131(b) of the Civil Rights Act prohibits any intentional interference based on race, whether acting under the color of law or not, with the right of any person to vote using intimidation, threats, or coercion. It does, however, require objectors to show there is an intentional discriminatory purpose on the part of the accused. See 52 U.S.C. § 10101(b).
- Voting Rights Act of 1965 (VRA)— Recognizing that intent is difficult to prove, Congress next enacted the Voting Rights Act, which prohibits voter intimidation without requiring harmed individuals to show that the violators had any intent to discriminate. Section 11(b) of the VRA broadly prohibits any intimidation, threats, or coercion against voting, without regards to an individual’s intent, and without requiring any racial bias. See 52 U.S.C. § 10307(b).
Both discrimination and efforts to limit the franchise are now increasingly insidious rather than overt. For example, many photo ID laws are passed under the guise of preventing virtually non-existent in-person voter fraud, but have the effect of suppressing the votes of low-income Americans and voters of color. Similarly, voter intimidation can occur under the seemingly benign context of electoral observation.
However, under both the KKK Act and the Voting Rights Act, facially neutral conduct that nonetheless results in voter intimidation is prohibited. And there is evidence that intimidation could be the result of the Trump campaign’s rhetoric this election season.
“Trump said to watch your precincts. I’m going to go, for sure,” Steve Webb, a Trump supporter in Ohio, told the Boston Globe. “I’ll look for…well, it’s called racial profiling. Mexicans. Syrians. People who can’t speak American. 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.”
It is to be hoped that Mr. Webb, and any individual, organization, or candidate interested in election integrity, takes the time to understand the laws that prohibit voter intimidation. The Republican National Committee (RNC), for example, learned its lessons the hard way. In 1982, after a lawsuit over polling place intimidation, the RNC was forced to enter into a legal consent decree that prohibits it from “undertaking any ballot security activities … directed toward districts that have a substantial proportion of racial or ethnic minority populations.” That decree is set to expire next year, but—as the Wall Street Journal reported—the RNC’s general counsel recently reminded its members not to participate in any activities that would violate—and perhaps extend—that decree.
When conducted according with the law, and without discriminatory intent, election integrity efforts have an important role to play in our democratic process. But any entity or person who purports to act, even under the color of law, to engage in voter intimidation shenanigans, should be aware that they are violating federal law and risking the possibility of a costly lawsuit.
