In these final two weeks of what has started to feel like the presidential election campaign version of Snowpiercer, we are all gearing up for a busy Nov. 8. Canvassers are undertaking GOTV efforts, station wagon and minivan drivers are volunteering to give rides, people are signing up for Election Protection and even the most casual of slacktivists are tweeting to remind their followers to check their polling places and voting hours. People are making plans to get to the polls, and many are volunteering their free time for other Election Day efforts. Election Day is exciting and our democracy is stronger when everyone wants to be a part of it.
But zealous democratic participation has its limits. Your enthusiasm for your candidate or cause or for democracy itself has to be tempered by the right of other voters to vote without intimidation or coercion. Given the heated rhetoric about rigged elections and the persistent and forceful calls for election observers to go out and watch the polls, we should all take a minute to talk about where those limits are.
Put simply, voter intimidation is a felony. Numerous federal laws prohibit voter intimidation by government officials and by private actors and in most states, those laws are reinforced by state laws prohibiting voter intimidation. There is no bright line to distinguish between legitimate poll watching activities and outright voter intimidation at the polls, but we know from past experience where poll watching starts to cross the line. First and foremost, poll watchers should do that and only that – watch. Directly confronting voters, especially in a threatening way, will often constitute voter intimidation. Writing down license plate numbers or taking pictures of voters as they arrive to or leave the polls will probably constitute voter intimidation. In many cases, the presence of law enforcement officials – or poll watchers who dress or say things in an attempt to mislead voters into believing they are law enforcement officials – can count as intimidation. And even if open carry laws allow firearms in a polling place, such open carry could still violate civil rights laws if it is intimidating.