Last Saturday in Pennsylvania, after claiming that the election will be rigged as he is wont to do, Donald Trump said:
You’ve got to go out. You’ve got to go out. And you’ve got to get your friends. And you’ve got to get everyone you know. And you got to watch your polling booths, because I hear too many stories about Pennsylvania. Certain areas. I hear too many bad stories, and we can’t lose an election because of you know what I’m talking about.
Last Sunday on CNN, Trump surrogate Rudy Giuliani laid it out in case that dog whistle wasn’t sufficiently audible to mere humans:
There are a few places, and not many in swing states … where they have been notorious for stealing votes. Pennsylvania, Chicago. There have been places where a lot of cheating has gone on over the years. … Dead people generally vote for Democrats, rather than Republicans … what they do is, they leave dead people on the rolls, and then they pay people to vote those dead people four, five, six, seven, eight, nine times.
In short, Trump has tasked his supporters to be “election observers” who will keep “Crooked Hillary from rigging this election” by hanging around polling places and protecting the integrity of the vote.
Some of Trump’s supporters appear awfully happy to sign on. This past weekend the Boston Globe spoke to some of them, including Steve Webb, a 61-year-old carpenter from Fairfield, Ohio, who told the Globe, “Trump said to watch your precincts. I’m going to go, for sure … I’ll look for … well, it’s called racial profiling. Mexicans. Syrians. People who can’t speak American.” And what will Webb do if he finds any? “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.”
What seems like a throwback to the Jim Crow era—visions of armed “poll watchers” scaring voters under the guise of keeping the process clean—suddenly looks to be the nightmare scenario for the 2016 election. And Donald Trump’s insistence, as recently as the third debate, that voting is “rigged” and that he might not accept election results if he loses, only creates more incentive for poll watchers to frighten voters.
Voter intimidation, roughly defined as any concerted effort to coerce the voting behavior of a group of voters, is a federal crime. “Whoever intimidates, threatens, coerces, or attempts to intimidate, threaten, or coerce, any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose, or of causing such other person to vote for, or not to vote for, any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner, at any election held solely or in part for the purpose of electing such candidate, shall be fined under this title or imprisoned not more than one year, or both,” reads 18 U.S. Code Section 594.
So what is legal? Certainly every state allows for volunteer poll watchers, and has a legal right to do so. Almost all poll watchers are volunteers designated by specific candidates, parties, or election officials to monitor procedures and events at voting precincts. They are trained and briefed on the law. But laws vary by state and, according to this report in ProPublica, in 46 states the laws permit private citizens to challenge a voter’s registration on or before Election Day. In Wisconsin, the report adds, “any voter can challenge someone’s ballot based on the suspicion that they are not qualified. The same goes in Virginia, Oregon and South Carolina.”
An expansive report from 2012 by the public policy organization Demos makes clear how much polling challenges can vary. In some states, challenges may only be from other voters registered in that precinct; some must be written; some must be filed only in certain time periods.
A yearslong and meandering lawsuit challenging some poll-watching behaviors was filed by the Democratic National Committee and ended in 1982 with the Republican National Committee signing a consent decree that precludes the party from engaging in so-called ballot security efforts, especially in areas where racial or ethnic makeup could itself be considered a reason for the activities. The RNC tried and failed to have that decree lifted in the courts. Professor Rick Hasen warns that there is at least some problem holding the RNC responsible for the conduct of Trump voters acting without the RNC’s cooperation and consent. Whether a court might find a connection between Trump’s suggestions, the nondenouncement by the RNC, and the actions of Trump supporters at the polls is by no means clear.
As Garrett Epps notes here, three other civil rights statutes, which are largely underused, also protect against racial voter intimidation and bar conspiracies to deny voting rights in various ways. Election lawyers argue that these statutes should be given real force in this election if racially motivated vote suppression happens.
And that brings us, inexorably, to questions about jurisdictions with open carry laws. Does bringing a gun to a polling place in and of itself constitute voter intimidation? What if a poll watcher decides to bring a gun she is otherwise authorized to carry while she is challenging voters? And what if the pistol packer is not actively challenging voters but claims she is merely engaging in peaceful First Amendment speech?
The first part is easy: While some states expressly prohibit guns in the polling place, many more are silent on the question. Restrictions are up to the states. If the statutes regulating firearms and those regulating voting places don’t forbid it, carrying is legal. Individual instances of intimidation would be resolved on a case-by-case basis in the courts, either by injunctions before Election Day or civil rights suits brought after.
The latter scenario is actually trickier, because demonstrating your love for the Second Amendment is unlikely to get you much traction under the first.
Whether carrying a gun to a polling place is protected as an expressive act has not been settled by the courts. But in other contexts, cases from Michigan, Ohio, and a decision from the 9th U.S. Circuit Court of Appeals all seem to suggest the simple act of carrying a weapon, without some additional expressive component, may not be a protected expression at all. And even if it were, the right to engage in First Amendment activity is, ironically, diminished the closer you get to a voting booth.
Most states prohibit “electioneering” in some form in or near any polling places. Electioneering restrictions can be as narrow as prohibiting advocacy (like wearing buttons or T-shirts) for a candidate or ballot measure and as broad as limiting discussion of partisan topics (Delaware) or attempting to influence the actions of a voter (New Hampshire). Some electioneering restrictions hint at a history of bought votes and voter intimidation—that’s why loitering near the polls is off limits in seven states. Others seem antiquated: like, don’t offer a Montana voter alcohol or tobacco outside the polling place.
All of these restrictions are constitutional. In a 1992 case called Burson v. Freeman, the Supreme Court held that the states have a compelling interest in preventing voter fraud and intimidation, an interest they can protect by limiting political speech in the final moments before a vote is cast. Against this constitutional backdrop, a symbolic speech argument—featuring the demonstration of a love of guns—is unlikely to fare well.
There’s ample legal precedent for considering the polls sacrosanct. How that sanctity affects the right to carry a gun may be a question coming to a court near you in 2017.
It’s useful to recall here that the court in Burson upheld a Tennessee law barring electioneering within 100 feet of a polling place, reasoning that the 15 seconds it took to walk that distance should belong to the voter alone, with as little interference as possible. After this campaign season, 15 seconds of peace before we vote seems like the least we deserve.