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Voters wait in line in Columbia, South Carolina on October 5, 2020. [AP Photo/Meg Kinnard]

Election 2020

Election Officials Are Planning for Conflict They Hope Won’t Materialize

Widespread concern about voter intimidation has state officials girding for the worst, even as experts say that fears are likely overblown.

Election officials and voting rights groups across the country are preparing to respond to unrest at the polls even though it’s unclear how real the threat of Election Day violence or armed intimidation may be.

Authorities emphasize that they are not responding to any specific threats of violence at polling places — and that they’re concerned about the potential for scaring off voters. But there is more than enough reason to be on alert. In recent months, armed militia groups and vigilantes have shown up at Black Lives Matter marches and numerous armed protesters have descended on state capitols to oppose COVID-19 restrictions. The general public is anxious about the divisive political climate and gun sales have been surging. President Donald Trump’s unfounded claims of widespread voter fraud also haven’t helped.

We consulted experts and took stock of the legal and practical landscape in several swing states. 

Assessing the risks

There’s a widespread sense that the risk of Election Day violence is much greater this year, although researchers say there’s little hard evidence to back up the collective anxiety. Online, there are few indications that extremist groups have plans to show up at polling stations or insert themselves into the democratic process. “I am not seeing very much discussion about election poll watching at all,” said Megan Squire, a researcher at Elon University who tracks extremists online. “Maybe they don’t want to talk about it this far out, or maybe they’ll make the decision at the last minute. But I am not seeing a lot of it.”

Minnesota Secretary of State Steve Simon, the battleground state’s chief elections officer, told The Trace that he, too, is struggling to assess the general threat level. “How much of this is bravado?” he asked. “How much of it is posturing and posing versus an actual threat, violent or otherwise, armed or otherwise?” 

“You know, you don’t want to not talk about it and sweep it under the rug, and pretend it’s nothing,” Simon said of the risk of intimidation at the polls. “But you don’t want to talk about it so much and so breathlessly that people say, ‘Oh, my God, this place is a deathtrap. I’m not going to go vote.’ That’s the balance.”

While it’s impossible to quantify the chances of conflict, Squire said radical groups have been emboldened by the president’s rhetoric, which she worries may lead to unplanned altercations between impromptu demonstrations or conflicts stoked by extremists who may feel they have permission to act as vigilantes.

Simon expressed concern about demonstrations escalating outside of polling places, though they may not have been organized to intimidate voters. “What if the Trump campaign mobilizes and the Biden campaign counter mobilizes, sending people to polling places — and even though it won’t be inside, what if we have 20 people or more from each campaign and a recipe for real conflict?” he asked.

The threat of armed intimidation

The announcement on October 8 that federal officials and state law enforcement in Michigan had arrested 13 men with a terrorist plot to take hostage Michigan Governor Gretchen Whitmer has brought heightened attention to the issue of unlawful militia groups.

Mary McCord, a former assistant attorney general for national security at the Department of Justice who now heads Georgetown Law School’s Institute for Constitutional Advocacy and Protection, said increased militia activity this year at anti-racism protests and at state capitols over COVID-19 restrictions are cause for concern.

“We’ve seen their increasing public presence this year,” McCord said. “We do have some concern that some of these armed extremist groups will take it upon themselves to deploy.”

McCord’s institute has been tracking extremist groups and its intelligence suggests that they are trying to send small contingents of armed members to the polls, she said.

McCord also pointed out that the leader of the Oathkeepers, a far-right militia group with adherents nationwide, recently said publicly that his group is gearing up to do the same. But that particular group is known for exaggeration and made the same promise in 2016. Neo-Nazi and QAnon extremist groups have made similar claims, which some say should also be treated skeptically because, as in 2016, their threats may not translate into action. Other paramilitary groups, like the Three Percenters, are using the election as a recruitment tool, because “who knows what’s going to happen after that,” one Three Percenter militia leader said.

Guns at the polls

Militias aside, guns at polling places remain a concern, and the line between legally carrying a weapon and using one to intimidate voters is quite thin. In 2016, when Guns Down America opened up a hotline for voters to call if they spotted guns at polling places and felt intimidated, 85 voters in 28 states reported firearms on Election Day. Many of these instances could have been people legally bringing their guns to polling places just as they would to the grocery store or church.

Guns Down America and the Coalition to Stop Gun Violence, and separately the human rights group Amnesty International have issued calls for states to clarify their laws and explicitly ban guns at polling places, saying that the presence of firearms could escalate an already volatile political climate. 

Only six states have laws that generally prohibit guns in polling places, and at least five battleground states — Virginia, Michigan, North Carolina, Pennsylvania, and Wisconsin — have no such laws in place. On October 16, however, Michigan Secretary of State Jocelyn Benson issued a directive banning the open carry of firearms in a polling place or the 100-foot buffer zone outside one. “Prohibiting the open-carry of firearms in areas where citizens cast their ballots is necessary to ensure every voter is protected,” she said

Firearms may not be allowed inside buildings that are often used as polling locations and where guns are already banned, like some houses of worship or a government building. But in states with permissive laws, carrying a gun into the polls is legal unless it is brandished or otherwise used to intimidate voters.

“We have a concealed carry law,” Simon, the Minnesota secretary of state, said. “We’ve had occasional — not frequent, but occasional — calls from voters who are pretty freaked out about that.” Simon added that he has no authority to change the state’s laws on his own.

Poll watchers

The president’s rhetoric has given election officials, particularly in battleground states like Minnesota, Pennsylvania, North Carolina, and Wisconsin, extra reason to worry. They fret that dozens of unofficial “poll watchers” might show up to “monitor” the election. That concern is particularly pronounced in states with lax gun laws and amid an ongoing pandemic during which crowded polling locations could potentially intimidate voters.

Plus, the 2020 presidential election will be the first in three decades in which the Republican National Committee (RNC) is free of a court consent decree that limited its ability to organize poll watchers because of concerns of voter intimidation. The decree dated back to 1982 when the Democratic National Committee sued the RNC, alleging that the party tried to discourage Black people from voting by posting armed, off-duty law enforcement officers at the polls in non-white neighborhoods. But a federal judge appointed by President Barack Obama allowed that consent decree to expire at the end of 2017.

Election officials want to make it clear that they are taking every precaution to ensure a safe voting experience. Simon said that, in his state, as in many others, poll watchers must be designated in writing by a political party, and have a limited range of motion and narrow authority within polling places.

“No one can just show up and say, ‘Hey, here I am, I’m the Democrat or the Republican and you gotta let me in,” Simon said. 

In most states, poll watchers — sometimes called challengers or election observers, depending on the range of authorized activity — are only allowed to observe the process, watch for abnormalities, and track turnout. They are not allowed to disrupt the voting or counting process. 

In nearly every state where watchers or challengers are allowed, there is a limit of one per precinct per major party, with some states requiring the observer to be a registered voter in that precinct. In some states, like Minnesota, challengers are allowed to contest a voter’s eligibility, but only under strict conditions.

The legal landscape

Experts told The Trace that unjustified claims attempting to cast doubt on the legitimacy of mail-in voting, which have been propagated by the president, may encourage extremists to act — but that there is not any legal basis for them to do so. “There is no authority under federal or state law for armed groups of individuals to self deploy and undertake legitimate law enforcement or legitimate militia activities,” McCord said. “There’s a lot of gray area in what the Second Amendment protects and doesn’t protect. But this is an area that’s crystal clear.”

Statutes prohibiting private militias have been upheld by the Supreme Court since the Reconstruction Era, and in 2008, in District of Columbia v. Heller, the court ruled that the Second Amendment does not prevent states from banning paramilitary organizations. 

What election officials are doing

Across the country, election officials are taking precautions to make polling places as safe as possible and free of intimidation tactics. The FBI, in conjunction with local authorities, has been conducting drills to improve responses to reports of violence or  intimidation.

In North Carolina, where early voting began Oct. 15, the state’s chief election officer issued a lengthy memo warning that voter intimidation is a violation of both state and federal law, that buffer zones outside polls will be enforced, and that poll watchers must be formally appointed. “The State Board is committed to ensuring all voters have a safe voting experience, free from intimidation and harassment,” said Karen Brinson Bell, executive director of the North Carolina State Board of Elections. “Regardless of political affiliation, every voter deserves to cast their ballot in peace.”

In North Carolina and Minnesota, local poll workers are being given specific guidance about what to do if things get out of control. In most states, police are prohibited from being stationed at polls because they can be intimidating. But poll workers are being trained in de-escalation and are told to call local law enforcement in the event of a conflict.

In Pennsylvania, which is a key battleground state that could determine the outcome of the election, Philadelphia officials assembled an Election Day task force to be prepared to investigate and prosecute any voter intimidation.

“Anyone who comes to the cradle of American democracy to try to suppress the vote and violate the law and commits crimes is going to find themselves in a jail cell talking to a Philadelphia jury to try to explain why they thought that was OK,” said Philadelphia District Attorney Larry Krasner at a press conference on October 7. “It is not OK.”

Community voter protection groups

To Kevin Johnson, concerns about voter intimidation and voter suppression are part of the American story — particularly for Black Americans who faced violence to gain the right to vote. For decades, they have endured suppression tactics, ranging from laws that disproportionately impact Black voters to violence.

 “This is nothing new,” he said, “but it’s sad that we still have to deal with it. This is the current conversation, but it’s not a new phenomenon when we look back historically over this country’s history.”

Johnson, a pastor and community activist who serves as a chair of the Poor People’s Campaign in Detroit, has worked for the past 30 years on gun violence prevention in the city. Nationally, the Poor People’s Campaign is calling on people of faith to lead the way to polls and to encourage their members and congregations to vote as part of the M.O.R.E. initiative, which stands for mobilize, organize, register, and educate.

Also in Detroit, Ponsella Hardaway, the executive director of the community organization MOSES, said its organizers are working to prevent conflict by encouraging early voting and organizing groups to vote at the county clerk’s office together. They believe lowering the stakes of Election Day itself may reduce the risk, but they’re still holding training sessions in preparation. 

“Our staff has been a part of training for how to de-escalate conflicts,” Hardaway said. “People are really gearing up to make sure that people are safe and making sure that people understand some of the strategies to be observant at the polls and watch for things that may not be right.” 

Hardaway, though, also noted that there is a fine line between acknowledging the threat and overestimating it. “We know that intimidation has always been a tactic,” she said. “We want to make sure that there are more people in support of more peace than agitation.”