Part of the Series
Beyond the Sound Bites: Election 2016
Republican presidential nominee Donald Trump’s call to his supporters to police the polls on Election Day has civil rights organizations and voters of color worried. With few options for real, civil-rights-focused poll monitoring here in the U.S., advocates are seeking international support in the struggle for a free and fair election.
The Leadership Conference on Civil and Human Rights sent a letter last month urging the Organization for Security and Cooperation in Europe (OSCE), a leading international election monitoring organization, to expand its election monitoring mission in the U.S. It urged the organization to concentrate its resources in southern states where voter discrimination, harassment and intimidation are most likely in the absence of federal oversight — a result of the 2013 Supreme Court decision striking down key sections of the landmark Voting Rights Act (VRA).
In the letter, the group’s president and vice president write:
A confluence of factors has made the right to vote more vulnerable to racial discrimination than at any time in recent history. The need for additional election observers is paramount. The unprecedented weakening of the [VRA] has led to a tidal wave of voter discrimination efforts nationwide and has required the United States to drastically scale back its own election monitoring program. In addition, a leading presidential candidate who has made the demonization of racial, ethnic, and religious minorities a hallmark of his campaign has recently urged supporters to challenge voters at polling sites nationwide.
During a campaign stop last month in Altoona, Pennsylvania, Trump claimed that “certain sections” — predominantly Black precincts — of the crucial swing state are vulnerable to voter fraud. He called on his supporters to “go down to certain areas and watch and study and make sure other people don’t come in and vote five times,” and to “go around and look and watch other polling places and make sure that it’s 100 percent fine.”
Trump has since ramped up that rhetoric, alleging fictitious claims on the campaign trail that recent court rulings overturning voter ID laws could allow people to vote as much as 15 times — thus, allowing “crooked Hillary” to steal the election.
The Trump campaign has asked supporters to sign up at the campaign’s website to become a “Trump Election Observer.” The sign-up page implores, “Help Me Stop Crooked Hillary From Rigging This Election!” The language of the campaign’s confirmation email for prospective poll watchers has changed, however, since August, when supporters received a message declaring, “We are going to do everything we are legally allowed to do to stop crooked Hillary from rigging this election.” Now the campaign simply tells those who sign up that, “We are going to make sure that every person who is legally eligible to vote is not prohibited from casting a ballot.”
The Trump campaign is amassing this army of poll watchers on the heels of a Justice Department move in July to scale back federal election observers this November as a result of the Supreme Court’s 2013 Shelby v. Holder decision. The ruling struck down a crucial section of the VRA requiring certain states to get federal approval before changing election laws. The decision also ended the Justice Department’s ability to send federal election observers to voting areas it determines are at risk of racial discrimination.
Federal monitors can now only be sent to five states this November, even though the Justice Department has previously certified 11 (mostly southern) states as needing federal monitoring. This election season will likely see one of the smallest deployments of federal election observers since the VRA’s passage during the height of the civil rights movement in 1965.
A Justice Department fact sheet lays out how the department’s ability to monitor polling places has been impacted by Shelby v. Holder’s invalidation of certain sections of the VRA. A Justice Department spokesperson declined to comment further or say exactly just how many people will serve as federal monitors this year.
“The kind of harm we see — in places that pass restrictive laws that we now spend years fighting on the back end, instead of preventing on the front end — the harm that comes when we don’t have the same number or kind of ‘eyes and ears’ in polling locations that we did before, cannot be undone,” said Attorney General Loretta Lynch in a speech in July at the League of United Latin American Citizens national convention.
Some of the 11 states the Justice Department certified as needing federal monitoring overlap with the states that The Leadership Conference is calling on the OSCE to target for international observation efforts, including North Carolina, Alabama, Georgia, Arizona and Texas. They’re also states that have passed voter ID and other measures that have since been overturned or mitigated by courts that found the restrictions to be racially discriminatory. The Leadership Conference, however, is also targeting Pennsylvania, Wisconsin and North Dakota for additional international observation efforts.
In June, the Warsaw, Poland-based OSCE issued a “Needs Assessment Mission Report,” in which it said it planned to send 500 monitors to the U.S. While Thomas Rymer, a spokesperson for the Office for Democratic Institutions and Human Rights, an arm of the OSCE, implied in an email to Truthout that the organization has no plans to change its monitoring program in response to The Leadership Conference’s letter, the organization’s existing plans for election 2016 more than double the 44 long-term observers that OSCE sent in 2012.
“The mission is due to deploy in early October, the information provided in the letter will be passed on to the mission,” Rymer wrote to Truthout. “Once deployed, the mission will contact all relevant electoral stakeholders, including The Leadership Conference on Civil and Human Rights, to discuss the pre-electoral environment and any concerns they may have with the preparations for elections.”
But The Leadership Conference doesn’t see international monitors as a panacea for an enfeebled VRA or the scaled-back federal election monitoring program that comes with it.
“Election observers that are international cannot replace what we lost. [International observers] have no authority. They observe and report. They have no federal national force of law that requires states to accept them,” said Scott Simpson, the media and campaigns director at The Leadership Conference. “But what’s happening is that voting discrimination has gotten so out of hand, and we’ve lost so many tools with the gutting of the Voting Rights Act, that we have to take any measure that we can to try to meet the challenge of addressing it.”
Simpson and other civil rights advocates fear Trump’s poll watchers will only add to that challenge. That’s why they are deploying their own nonpartisan poll watchers through the 866 Our Vote Coalition, a network of lawyers and volunteers who, in addition to acting as observers, also field phone calls from voters experiencing problems at the polls.
Poll watchers, also known as “challengers,” are most often appointed by a political party or candidate to ensure election laws, including important laws prohibiting electioneering near polling places, are being observed. But due to the U.S.’s decentralized election administration system where rules are determined at the county level, stipulations regarding poll watchers’ qualifications, the powers they can exercise, their proximity to polling places, the number of watchers present, the types of watchers (partisan or nonpartisan) allowed and the aspects of the electoral process that can be observed vary widely depending on state election codes and county regulations.
Most commonly, watchers and challengers are dispatched to protect against incidents of in-person voter fraud — seemingly the Trump campaign’s goal in recruiting their own watchers in the run-up to Election Day. But how likely are Trump’s partisan poll police to actually prevent cases of in-person fraud?
Current research indicates they’re monitoring for needles in a massive haystack. Several studies on the issue have found that the frequency of in-person voter fraud — someone attempting to vote using another person’s identity — is negligible to nonexistent. In a survey of 1 billion ballots cast between 2000 and 2014, only 31 possible cases of in-person fraud were found.
What’s more likely is that an influx of partisan poll watchers and challengers this November may only complicate, confuse, burden and even disenfranchise voters.
With a string of recent court decisions in Texas, Kansas, North Carolina, North Dakota and Wisconsin overturning voter ID laws and other voting restrictions, public confusion still remains in many states regarding just what the law is. Meanwhile, according to the Brennan Center for Justice, 15 states will still have new restrictions on voting in place for the first time in a presidential election this November.
According to a 2015 survey of poll watcher statutes conducted by the University of Georgia, many states’ statutes concerning partisan poll watchers are troublingly lax, inviting abuses or manipulation of voters by partisan political actors.
States with permissive rules such as Arizona can allow partisan poll watchers to orally challenge voters. Moreover, the basis upon which watchers can challenge voters is, in some cases, overly broad, such as in Missouri, which allows challenges to “election laws generally.”
Pennsylvania — where Trump wants his poll watchers to target predominantly Black precincts — allows partisan poll watchers to directly interact with voters. Many states prohibit any direct interaction between watchers and voters, and require only written challenges that must be submitted to and reviewed by an election official.
Other statutes can be permissive in ways that allow partisan poll watchers to potentially violate the privacy of the voting booth itself, such as Louisiana’s statute that allows poll watchers “within all parts of the polling place.” Most other states have a rule stipulating that watchers must be a certain distance from voting booths.
While some states such as Kentucky require poll watchers to attend training sessions that provide information regarding who is eligible to vote and the proper challenge procedures, many states require no such training at all.
Moreover, lax rules in states like Arkansas, Colorado and Iowa allow challenges based simply on a watcher’s suspicion that a voter isn’t properly registered or is otherwise ineligible. These broad rules have led to incidents in which watchers’ prejudices have fueled challenges to eligible voters of color. A watcher cannot know, for instance, whether a prospective voter has lived in the state for the required length of time, whether they are a felon, or whether they are a U.S. citizen, simply by observing them.
In 2012, for example, a first-time poll watcher in Maine challenged two Somali citizens’ right to vote because they couldn’t speak English. Additionally, complaints of voter intimidation surfaced in 2010 and 2012 after the Tea Party-affiliated group True the Vote harassed voters of color in Harris County, Texas, and later in Ohio, where voters received letters that their vote was being challenged. In fact, in 2012, one True the Vote organizer explained to volunteers that their goal was to make voters feel “like driving and seeing the police following you.”
Furthermore, Richard Cohen at the Southern Poverty Law Center notes that Trump’s recruitment of poll watchers is being promoted by white supremacists on Stormfront, perhaps the world’s most prominent neo-Nazi website.
Last month, the Carter Center, in conjunction with the National Conference on State Legislatures, conducted research regarding state-to-state policies regulating partisan, non-partisan, academic and international election observers. The groups found that, “Almost all states, with a few exceptions, have statutory provisions for partisan citizen election observers. It is common practice for political parties and candidates to appoint poll watchers and/or challengers to observe elections,” and that poll “challengers … have power to contest voters’ eligibility to cast a vote. A challenged voter may be required to prove his or her eligibility with documents and identification before proceeding to cast a regular or provisional ballot.”
Regarding accreditation, the Carter Center and the Conference on State Legislatures found that “10 states allow partisan citizen, nonpartisan citizen, and/or international observers but have no accreditation/appointment processes for any type of observer. This is often because observer access is left to local election officials, or the public at large may observe the election process and formal accreditation is therefore not necessary.”
“There tends to be a bit of a gap between law and practice across the country,” said Avery Davis-Roberts, associate director of the Democracy Program at the Carter Center, who worked on the recent research. “Some of the functions [of non-partisan observers] were fulfilled by federal observers, but at the same time [the reduction in federal observers] may mean that it’s really up to citizens to do more thorough, strong, credible, non-partisan citizen observation efforts to sort of fill that gap.”
The Carter Center requires its non-partisan election observers to sign a code of conduct that has been used by many leading international election observation organizations, and which volunteer observers are informed they will be held accountable to.
On the issue of potential confusion among poll watchers over state voting restrictions that have since been overturned by courts, Davis-Roberts believes more needs to be done to inform voters themselves, so they are less likely to be swayed by misinformed monitors.
“I think what this also speaks to is the need for really good voter education, so that voters themselves know more about what the voter ID regulations are, especially in these landscapes … where maybe regulations are changing quite close to the election date,” Davis-Roberts said. “It really puts a burden on those running the election to make sure that this information is out there, that people have access to it.”
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