Happy Election Day from the Amicus team! Today, Americans are coming together to have their voices heard and be counted in our democracy. With so much concern regarding voter intimidation and misinformation, we want to review what your rights are as a voter, so you can spot potentially illegal activity and feel confident reporting it. Election Day should be a time to celebrate the exercise of our civil rights—not a time for fear.
Voter intimidation, or even attempting to intimidate a voter, violates civil federal law, and can be enforced by private individuals, State Attorneys General and the U.S. Department of Justice. Any attempt to intimidate voters could violate at least three different federal laws: Section 2 of the Ku Klux Klan Act of 1871 (42 U.S.C. § 1985(3)), Section 131(b) of the Civil Rights Act of 1957 (52 U.S.C. 10101(b)), and Section 11(b) of the Voting Rights Act of 1965 (52 U.S.C. § 10307(b)).
In Section 2 of the Klan Act, prohibits conspiracies of “two or more persons” to “prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person” for federal office, or “to injure any citizen in person or property on account of such support or advocacy.”
Section 131(b) of the Civil Rights Act of 1957 states that “[n]o person, whether acting under color of law or otherwise, shall intimidate, threaten, coerce, or attempt 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” for any candidate for federal office.
Section 11(b) of the Voting Rights Act of 1965 states that “[n]o person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote.”
Multiple federal statutes also make it a crime to intimidate voters. It is illegal to intimidate, threaten, or coerce a person, or attempt to do so, “for the purpose of interfering with” that person’s right “to vote or to vote as he may choose.” 18 U.S.C. § 594. It is also a crime to knowingly and willfully intimidate, threaten, or coerce any person, or attempt to do so, for “registering to vote, or voting,” or for “urging or aiding” anyone to vote or register to vote. 52 U.S.C. § 20511(1). And it is a crime to “by force or threat of force” willfully injure, intimidate, or interfere with any person because he or she is voting or has voted or “in order to intimidate” anyone from voting. 18 U.S.C. § 245(b)(1)(A). The punishment for violating these laws is a fine or up to a year in prison, or both.
But what does all of this mean? Voter intimidation can be subtle and is often dependent on the context in which it occurs. Some examples include falsely presenting oneself as an election official, spreading false information about voting requirements, or confronting voters or disrupting polling places. Federal courts have established some clear lines on what likely qualifies.
In 1982, the United States District Court for the District of New Jersey ruled that uniformed police officers stationed inside a polling place violated the Voting Rights Act. Though the case ended in a consent decree that has since expired, it is likely that, should such a case reoccur, courts would reaffirm the ruling. Other actions by law enforcement that make voters feel unsafe, like surveillance or threats, violate the Voting Rights Act, as ruled in United States v. McLeod, 385 F.2d 734 (5th Cir. 1967).
Harassment of voters, particularly to ask them about their qualifications to vote, counts as voter intimidation. This type of harassment does not need to be racial in nature, nor does it require a threat of force or physical violence, in order to apply. Of course, threatening voters with physical harm in order to interfere with their vote likely counts as voter intimidation. Paynes v. Lee, 377 F. 2d 61 (5th Cir. 1967).
Threatening voters with economic harm can also count as voter intimidation. In United States v. Bruce, 353 F. 2d 474 (5th Cir. 1965), an African American insurance collector was barred by his clients from collecting debts because of his plans to vote, forcing him to choose between his livelihood and his ballot. The federal appellate court found his neighbors’ actions were federal voter intimidation. Similarly, in United States v. Beaty, 288 F. 2d 653 (6th Cir. 1961), African American sharecroppers were denied tenant options by local white landowners due to their plans to vote, and the federal appellate court found these actions were federal voter intimidation.
Aggressive poll-watching techniques count as voter intimidation. In 2004, the United States District Court for the District of South Dakota ruled that the following of voters to polling places and the recording or copying of voters’ license plates at polling stations was illegal voter intimidation. Daschle v. Thune, et al, 2004 WL 3650153 (D.S.D. 2004).
The Trump Campaign has organized and trained over 50,000 poll watchers for Election Day 2020, and voters should be prepared to face poll watchers as they head out to cast their ballots. Though specific regulations vary by state, acceptable actions while poll watching usually include:
- Counting voters in line and reporting the numbers of voters to their parties and candidates
- Challenging a voter’s identity or right to vote by filing the challenge with the clerk/poll worker and explaining their nonfrivolous reason for doing so (in the case that your vote is challenged, you can cast a provisional ballot, which will be counted once your right to vote is confirmed)
- Observe as poll workers count votes during and at the end of the election
However, poll watchers cannot:
- Film, take pictures or record audio of voters
- Confront voters directly about their identity or right to vote
- Disrupt voting or the counting of ballots
If you are voting, working in a polling place, or simply observing, and you notice what appears to be voter intimidation, know you have support. Report anything that makes you feel unsafe to local and state officials, including poll workers, your county clerk, or your state board of elections. You can also report intimidation to the Election Protection Hotline: 1-866-OUR-VOTE (1-888-VE-Y-VOTA) or text MYVOTE to 866-687-8683.