"What we are seeing include calls for civil war, race-based conflict, and for increased acquisition of weapons," said Figliuzzi, speaking at an October 2 briefing by the Lawyers' Committee for Civil Rights Under Law on voter intimidation threats and responses. "Right-wing extremist groups, including QAnon, Proud Boys, Boogaloo Boys and violent militia groups, are all using the language of violent conflict in both their public and in their private communications online."
"They are also calling for a physical response and presence at the polling places," he said. "The specter of people who are violent in nature and have violent agendas, and often come armed with long guns, is becoming a very real possibility."
The Lawyers' Committee briefing suggested that recent incidents where Trump supporters have badgered voters and election officials in blue epicenters may be signs of bigger trouble as Election Day nears. Both parties have stepped up recruitment of partisan poll watchers and, in Trump's case, voting vigilantes.
While the committee's briefing emphasized there were laws protecting voters from last-minute electioneering and intimidation, as well as rules that regulate what partisan observers can and cannot do at election sites, its message was that public officials must speak out more forcefully to reject voter intimidation at polls or in the streets, and say how authorities would respond should it occur.
"One step that election officials can make is to make clear the campaign-free zone that applies in their states," Kristen Clarke, the Lawyers' Committee's president and executive director, said, referring to the buffer zone that surrounds polling places or buildings with voting sites inside, where supporters of candidates and causes cannot campaign. "In every state there is a certain perimeter in which electioneering activity is prohibited, and [in] which intimidating activity would also be prohibited."
"Officials often do a good job promoting the time and date for elections, and what's on the ballot," Clarke said, referring to the public information campaigns that have increased since Labor Day. "Going one step further to make clear that no intimidation is allowed within a certain zone outside the doors of a polling site would be one small step."
Local and state prosecutors should take strong stances condemning any menacing presence at polls, she added, especially since the U.S. Department of Justice has abdicated that role under Trump. "This may be a moment where we lean on state and local law enforcement to step into those gaps."
"There is also a tremendous role to play for law enforcement leaders in terms of messaging," agreed Kenneth Polite, former U.S. attorney for the Eastern District of Louisiana, speaking at the same briefing. His recommendation included "making public statements that emphasize… their commitment to protecting these constitutional rights, including their roles of protecting [against], evaluating and prosecuting this type of intimidation."
The week after the Lawyers' Committee's briefing saw some officials beginning to speak out. On October 6, the attorneys general of Michigan, Wisconsin and Nevada, all Democrats, held a video press conference where they condemned Trump's call for unofficial poll watchers and vowed to prosecute voter intimidation. Other recent news reports have noted that local election administrators and police have been reevaluating their security plans.
Not a Normal Election
There were many reasons behind today's worries about voter intimidation that set 2020 apart from threats of election violence in the recent past, the committee's experts said. Foremost was Trump's role as an "instigator or radicalizer" with his attacks on the voting process and calls for supporters to confront what Trump said would be cheating by Democrats. Another factor was in 2018 the Republican National Committee was freed from a decades-old federal consent decree that barred it from using voter suppression tactics. And another was scenes from Midwestern states where right-wing zealots brought military-style guns into statehouses while protesting government-ordered COVID-19 precautions.
The most likely targets for voter intimidation were not polling places randomly chosen from the 100,000-plus voting sites that will be open on Election Day, November 3, the experts said. The targets would likely be polling places in communities of color in swing states, they said, especially in locales where anti-police brutality protests and Black Lives Matter rallies have occurred.
The fact that these settings have residents who distrust the police adds a complicating layer when it comes to how authorities will intervene should legal electioneering cross the line into illegal voter intimidation, disturbing the peace or criminal violence. Police have more authority than election officials to respond if threatening behavior or violence arises at polls or in the streets, but many voters in communities of color don't want to ask the police for help—or believe that the police will protect them—voting rights advocates said.
"It's one thing to say we need folks [waiting to vote] to be tougher. It's another thing to say, 'Who is going to protect you?'" said Jorge Vasquez Jr., Power and Democracy Program director for the nonprofit civil rights law firm Advancement Project. "[If] you're a Black or a Brown voter, and you see how Black or Brown people are being treated by law enforcement, you would understand that you're really talking about [a situation in which your]… life may be on the line in a way that it hasn't been in the past."
Gray Zones
Vasquez has been meeting with local police in six swing states—Arizona, Michigan, Pennsylvania, Virginia, Georgia and Florida—to try to set some ground rules in communities of color before Election Day. His efforts to get police to negotiate and sign memorandums of understanding about how they will engage with voters this fall had similarities to those of protest organizers engaging with law enforcement before holding rallies and demonstrations.
The problem facing both voting rights advocates and officials is not people respectfully exercising their First Amendment rights, but rather with dealing with provocateurs who disrupt events and seek to provoke a police response that interrupts others from exercising those rights, Edward Maguire, a professor of criminology and criminal justice at Arizona State University, recently told NPR. "Police know how to handle peaceful protests. The harder part is when you have that gray zone in between, where you have protests that are largely peaceful, but you have people who are behaving in a violent or destructive manner."
When it comes to campaigning and voting on Election Day, there can be several gray zones. The first is where one person's actions in support of a cause—called electioneering—are legal but may be intimidating to others who don't share their views or ideology. Then there are clearly intimidating actions that likely violate election or criminal codes, if those actions were being monitored and those laws were being enforced. But people in opposing political parties and local authorities may not see or judge the same actions the same way.
There are a series of state and federal laws that protect voters. The most obvious are buffer zones around the entrances to polls where electioneering is not allowed. These distances are specified in state law and vary, from 10 feet in Pennsylvania, to 40 feet in Virginia, to 100 feet in Wisconsin and Michigan, to 150 feet in Florida and Georgia. There are state and federal laws barring voter intimidation, rules governing the conduct of partisan observers in election sites, and laws outlawing any election-related violence. (On the other hand, it is legal to bring guns into polls in Michigan, North Carolina, Pennsylvania, Virginia and Wisconsin, gun control groups have reported.)
There were two recent widely reported instances of Trump supporters badgering voters and election officials that illustrate the clear lines and ambiguities that arise as voters and authorities respond to loud but legal electioneering, and to what one seasoned observer concluded was illegal voter intimidation.
A clear line was seen in Philadelphia, where Trump supporters demanded to observe the start of early voting at a satellite voting center just before 2020's first televised presidential debate. Perhaps the gambit was a stunt to give Trump fodder to smear the city's elections, which he did. But local election officials told the Trump supporters that they could not stay because they had not followed the process to become credentialed partisan observers.
A blurrier line emerged during the first weekend of early voting in Fairfax County, Virginia. In that diverse Washington, D.C., suburb, a caravan of Trump supporters drove into the parking lot where voters were lined up at the county's government center, some revving their engines, which upset some voters. A small band of Trump supporters got out of their cars and trucks and converged at a plaza near the entrance, where they waved banners and cheered for Trump. Some voters who felt intimidated alerted officials, who came out, spoke to the campaigners, and then opened the government center so voters could wait inside in the hallways.
"There are two factors that go on that you should be thinking about," said Kevin Kennedy, who was Wisconsin's top statewide election official from 1982 to 2016 and a lawyer. "There's the electioneering factor, which is trying to influence voting. 'Don't vote for that jerk,' 'Vote for this party,' or whatever. And in Wisconsin, that [electioneering] stops 100 feet from the entrance of any building containing a polling place with the exception of a sign on private property."
"The second factor is you cannot interfere with the orderly conduct of the election," he said. "The general definition of disorderly conduct is something that tends to disturb the peace or create an issue… I would say that driving a truck through a parking lot [to disrupt waiting voters], even if you are more than 100 feet away, would probably qualify [as intimidation]. The question then is resource allocation for law enforcement."
Kennedy's last point highlights another gray zone that affects when and where police might step in—if they were present or were called upon to do so.
Election officials have narrower authority than the police to deal with bad behavior as it moves from the polls to the street. Kennedy concluded that Trump supporters toying with Fairfax County voters outside of Virginia's 40-foot electioneering boundary was illegal voter intimidation, but it did not prompt arrests. Since the incident, county officials are seeking to extend the buffer zone to 150 feet.
"We need individuals to use their discretion in a way that promotes democracy," said the Advancement Project's Vasquez. "I've seen in 2018 in Florida, voters come with horses waving an American flag where there are people with long lines, similar to the pickup trucks [in Fairfax County]. It is fact-specific and looking at the totality of the circumstances."
What Kind of Police Presence?
How visible police should be at polls, especially in communities in color, is a complicated question.
"The polling station has historically been a militarized space for Black voters," said Jeralyn Cave, Vasquez's colleague and Advancement Project spokeswoman, citing America's history of white vigilantes, segregation, Jim Crow and recent partisan voter suppression.
"So many people [police] don't want to use their discretion as it relates to elections," Vasquez said. "But any other time, they are willing to use their discretion. Most recently, I think what we could compare it to is we have millions of people storming the street to practice their First Amendment right to peaceful[ly] protest [police brutality]. And we have some police officers who are deciding that, 'You know what, you guys are in a group during a pandemic, and we're going to use our discretion to either charge you with something or not charge you with something.'"
The question, then, becomes one of nuance. What can government officials do now to assure voters in battleground states that voting this fall will be safe? Vasquez has been trying to negotiate ground rules with police in communities of color in swing states. But as of October 2, Cave said that no law enforcement agency had signed any memorandum of understanding.
Other voting rights advocates, such as the Lawyers' Committee's Clarke, did not want to see more police at polling places.
"In no uncertain terms, we object to the presence of law enforcement at the polls," she said at the same briefing where Figliuzzi described the growing threats from right-wing militants. "We observed in Wisconsin, officials resorting to using the National Guard to fill in gaps as they worked with insufficient numbers of poll workers. Many of them were in plain clothes. We're very concerned about any further efforts to activate law enforcement in any further fashion at polling sites, particularly in the communities with large numbers of voters of color."
Figliuzzi replied by listing some "warning signs and indicators" to look out for.
"One would be the presence of federal agents of any kind deployed to polling sites, which might, as you heard, be a specific violation of law," he said. (Armed federal agents and military personnel are not permitted at polls, despite Trump's claims.)
"Secondly, I would be particularly vigilant for any reports that off-duty police officers have been hired by any private organization, or an organization that may be linked to a particular campaign, to conduct some kind of so-called security or monitoring," he said. "That would be very troubling, particularly since many [police and sheriff] departments are canceling all off-duty work, or other duty work, because of the concerns about the polling place [on Election Day]."
But there were low-key roles that police could play to keep poll settings orderly.
"We don't want to call out [oppose] perimeter security, parking lot traffic management type things that will get people in and out safely," Figliuzzi said. "But [we] want to watch for the warning signs that would tell us that something is amiss with the presence of law enforcement."
The Lawyers' Committee briefing ended by imploring government officials, not just election administrators, not only to be more vocal about protecting the health of voters during a pandemic, but also to publicly state their commitment to voter safety in swing states. Journalists, too, should pressure state and local officials, they said. The panel's experts did not trust the federal Department of Justice's efforts to protect voters.
"Reporters should feel free to ask their law enforcement leaders—[police] chiefs, sheriffs, state officials—will you be setting up a command post or joint operation unit with law enforcement and federal partners for the election?" Figliuzzi said. "Will you be issuing press releases that remind people what the law is and what is permitted? Will you be engaging in proactive dialogue through your intelligence officers with known leaders of activists or groups? Will you be considering designated protest areas away from the polling place?"
What should voters do if they face intimidating actions at the polls or in the street?
"You never want anyone to be confrontational. And do document what is happening," Vasquez said. "Know who to contact. Certainly, contact Advancement Project's national office with any questions you have. Reach out to us on social media. We'll help you assess the situation and find a plan through it. But at this point, the best thing you can tell anyone is 'Don't be confrontational.'"
"It's not your place to necessarily be confrontational," he emphasized. "But it is your place in being able to safely cast a ballot."
Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, the American Prospect, and many other
This article was produced by Voting Booth, a project of the Independent Media Institute.
