District of Columbia Mayor Muriel Bowser put the city under a strict curfew Monday and Tuesday nights, barring most residents from leaving their house after 7 p.m. But the district is in the midst of a primary election, and voting centers will remain open until 8 p.m. on both nights. Tuesday is the final day to cast a ballot. Residents who vote on either night may therefore risk arrest while walking to or from the polls after curfew. And Bowser has declined to explain how they can avoid a confrontation with law enforcement in the process.
For several days, thousands of demonstrators have protested police brutality in front of the White House, spurred by a video of a Minneapolis officer murdering George Floyd. These protests grew violent on Saturday and Sunday: Police shot tear gas and rubber bullets into the crowd, while some civilians broke into offices and government buildings and set several destructive fires. Bowser waited until Sunday evening to impose an 11 p.m. curfew, though it was widely ignored. The mayor later set a 7 p.m. curfew for the following two days; violators face 10 days in jail or a $300 fine. It exempts “individuals performing essential duties,” including members of the media and health care personnel.
But what about voters? Bowser has urged residents to vote early, and Monday is the last day of early voting. Tuesday is Election Day. Because D.C. is overwhelmingly Democratic, the primary effectively determines the winner of most races for the D.C. Council. Polls are still set to stay open until 8 p.m. What happens to voters who leave their homes to cast a ballot after curfew?
On Monday, a spokesperson for Bowser told Politico’s Zach Montellaro, “Voting is essential, therefore D.C. residents voting will be exempt to the curfew.” Montellaro then asked if Bowser’s office had communicated with the Board of Elections, provided guidance to poll workers, or established “proof” residents might need to convince police they broke curfew to vote. The spokesperson did not know the answer to any of these questions.
Protecting voters during this crisis appears to be a low priority for Bowser. As the current protests seek to demonstrate, however, encounters between law enforcement and civilians—especially minorities—can often turn tense, violent, and deadly. The mayor’s curfew gives D.C.’s Metropolitan Police Department the authority to stop anyone who is outside after 7 p.m. since someone’s mere presence is potentially illegal. The mere threat of a police encounter may be enough to discourage people from voting; they might rather stay home than risk a confrontation with law enforcement. Moreover, the city is currently flooded with members of the National Guard, the Secret Service, the Federal Protective Service, the U.S. Park Police, and Customs and Border Protection. Will these officers let residents vote without harassment or arrest? (CBP has an especially appalling record of lawlessness.)
This sweeping discretion is a recipe for racial profiling, already a problem in D.C. Council member Charles Allen acknowledged as much on Monday when he tweeted that the curfew “will keep people from voting and we all know who is most impacted by this.” Allen recommended that the curfew start at 8 p.m. to at least coincide with polls closing, but the mayor rejected his advice.
Bowser’s decision is especially problematic given the city’s shaky implementation of absentee voting this spring. The mayor encouraged all Washingtonians to vote by mail due to the pandemic, but many residents who requested ballots have not yet received them. The Board of Elections has sent staff members to drive around the district hand-delivering ballots in a desperate, last-minute effort to make up for systemic failures. Anyone who does not get their absentee ballot by Tuesday will have to vote in person—and potentially break curfew.
The possibility of officers grilling Washingtonians and threatening them with penalties for voting during curfew raises grave legal concerns. Other cities, including Atlanta, will create a similar conundrum for voters as they attempt to hold elections and impose curfews simultaneously in the coming weeks. In times of crisis, lawmakers exert extraordinary power over our lives and liberties. But they have no constitutional authority to let the police arrest Americans on their way to the voting booth.