*****Disclaimer: This is not legal advice and is for educational purposes only. This does not create an attorney-client privilege.
One of the last blog posts covered voter intimidation and outlined the different forms of it, as well as how it is considered a felony. But there are many who would say despite this law, there are still forms of legal and state approved voter intimidation. Poll watching is something that is allowed in many states and is said to be a way of ensuring a fair election. However, there is real potential, especially in states that give them more permissions to interfere with the voting process, for them to contribute to voter intimidation, albeit in a legal way.
In recent weeks we have seen this potential for poll watchers to be used as a means of intimidation highlighted in the news. President Trump appealed to his base in North Carolina to volunteer as poll watchers to prevent “the thieving and stealing and robbing” that he has been continually claiming will plague the 2020 election. It is important to point out that these claims of rampant voter fraud are entirely unfounded, lacking any data or evidence to support them. He has even urged for the use of law enforcement to patrol and monitor these places. Except, these suggestions are not the intention for how poll watching is supposed to be conducted. Yet are these more blatant attempts to encourage voter intimidation so far outside of the reality of normal poll watching?
One of the key issues with poll watchers is that they are not necessarily, or even usually, there on a bipartisan or apolitical basis. Poll watchers are often appointed by a particular political party, precinct party committee or nominee, depending upon the state. These individuals must be registered voters in the state and district that they are monitoring, and must complete training and provide their certification paperwork when they are performing their duties at a polling place. Uncertified poll watchers are supposed to be strictly prohibited. Different states have different policies on the number of poll watchers from a given candidate or party that can be present at a given election site as a means of minimizing potential intimidation. But again, the level of protection this actually provides is dependent on the varied state policies.
What exactly poll watchers are permitted to do varies from state to state as well. This site is a good resource to find out the specific rules for them in your particular state. Generally, they are allowed to observe vote counting activities and act as a set of eyes for things such as ballots being tossed out, etc. In some states, they are permitted to inspect the roster of voter signatures. One of the most concerning permissions granted to poll watchers in some states is the ability to actually challenge a voter and question their eligibility to cast a ballot. There is a clear issue with this, as it directly allows for profiling and often lends itself to prejudiced challenges. How can one determine on sight alone who may or may not be an eligible voter? You really can't. And the reality is, that voter fraud is negligible. It is a rare person who would forge the necessary documentation and wait in a line to vote for hours just to cast a single vote.
The actual efficacy of poll watchers at preventing voter fraud is not known and likely is not substantial. However, the real potential for them to do harm and intimidate citizens attempting to exercise their right and civic duty is a real issue.