Brentin Mock is a staff writer at CityLab. He was previously the justice editor at Grist.
Much of the damage done by self-appointed “poll watchers” will be hidden from the public, and will happen before Election Day.
As Donald Trump’s calls for the harassment of African-American and Latino voters at the polls become more flagrant, it’s important to understand exactly what kind of damage these self-appointed “poll watchers” can do. Voter intimidation is one thing—and many poll watchers will find that some voters are harder to intimidate than others. But there are other ways that vigilante poll watchers can be problematic, namely by challenging people’s eligibility to cast ballots. It’s the kind of attack that can blindside a voter on Election Day, because unofficial poll watchers—those who are not enlisted for state- or political party-authorized election observing—can make these challenges without ever physically confronting the voter.
States have different rules about how to regulate both official and bootleg poll watchers, and some states are less restrictive than others. The nonpartisan election-watchdog group Common Cause has assembled a report that sketches out what voter-challenge policies look like in the presidential election’s 11 battleground states: Colorado, Florida, Iowa, Michigan, Nevada, New Hampshire, North Carolina, Ohio, Pennsylvania, Virginia, and Wisconsin.
The most troublesome thing about these challenges is that they are often made against people of color. Meaning that the very same populations that have been blocked from voting throughout most of American history are still being targeted with voter-suppression tactics. From the report:
Parties and groups alike have conducted mass challenges, often targeting poor and minority communities, the “certain areas” alluded to by Trump. Wherever they occur and whatever the circumstances, challenges can be disruptive for the voter, others in the precinct, and election officials. Challengers often question the citizenship, residence, or identity of individuals or groups of voters.
So, if you are an African American, Native American, Latino or even an Asian American living in a battleground state, you’ll want to check your state’s laws about what does and does not fly when it comes to voter challenges. This handy chart from the Common Cause report provides a summary glimpse of these guidelines:
Just to provide a quick glossary, “elections officials” are poll workers—which could include some certified poll watchers—who staff the polling places, check voters in, and direct them to stations where they can cast ballots. “Provisional ballots” are ballots that are counted as valid only when that voter later presents evidence of voting eligibility to a court or elections official.
As you can see on the chart, there are a few battleground states—notably Pennsylvania and Florida—where people who are not election officials can challenge a voter’s eligibility, causing the challenged voter to have to vote provisionally. For Florida, one of the most hotly contested states in the campaign, this means that, “any political poll watcher or voter registered in the county [can] make an allegation without substantiating it,” and the challenged voter “has no immediate opportunity to counter a claim that, for example, he is not a citizen or otherwise ineligible.”
In Pennsylvania, where Trump has vociferously ordered suburban whites to “watch” urban polling places, the rules for reining in bootleg poll watchers are pretty sketchy, as well. As in Florida, any registered voter (from within the county) or self-appointed poll watcher can challenge a voter’s identity or residency. But in Pennsylvania, the challenged voter then has to go find another “qualified” voter from the same election district who will swear by affidavit that the challenged voter’s identity or residency is legit. This madness is bad enough that Common Cause is recommending that voters go to the polls with friends or family members who can vouch for them in case a challenge is filed.
Of the 11 battleground states, only Ohio has a model for voter challenges, according to the Common Cause report. There, only licensed election officials can challenge voters on Election Day. And they do, perhaps to a fault. That said, any registered voter can challenge another voter’s eligibility before Election Day by rummaging through the voter rolls for names that a challenger believes are illegitimately registered. Again, these challenges often disproportionately are leveled against people of color—those accused of not being full citizens, mainly those of Latino, Caribbean, African, and Asian consent.
Voter challenges have been particularly problematic in past presidential elections in both Pennsylvania and Florida. One out of five African Americans are already prevented from voting in Florida due to the state’s strict felony disenfranchisement laws. Amateur voter challengers have worked to exploit those restrictions to challenge mostly black and Latino voters in Florida—many of whom it was later discovered were eligible to vote.
The U.S. Department of Justice will unfortunately be reducing the number of federal election observers it usually deploys for the very purpose of protecting groups who’ve historically been politically violated at the polls. In 2012, the DOJ sent nearly 800 observers out to monitor elections in 23 states. This year, the DOJ has not guaranteed that it will send any federal observers out, thanks in large part to the compromised state of the Voting Rights Act.
Perhaps to make up for that, the Justice Department announced on October 25 that it will make lawyers available from its civil rights and criminal divisions to enforce federal voting-rights protections on Election Day. Those lawyers, along with the U.S. Attorneys’ offices, will monitor certain polls and field voter-intimidation and harassment complaints.
But again, much of the damage from rogue poll watchers will come unbeknownst to most voters, and out of the public eye. By the time many voters learn that their eligibility has been challenged, it will be too late—and civil-rights lawyers may learn about it only after Election Day.
When the Voting Rights Act was working at full-strength, it was able to, in many ways, protect voters of color before such voting-rights violations happened. But this will be the first presidential election without the full sentinel powers of the Voting Rights Act since it was passed in 1965. And Donald Trump’s henchmen will be taking full advantage of that.