It’s been clear for awhile that Trump is very likely to lose a fair election. I’ve been worrying about what happens if the election is not fair. There’s a lot of ways the election can be stolen. We’ve been watching the Republicans fight tooth and nail to make it harder for people to vote these last weeks. They will keep fighting after the election to try to invalidate votes that were cast, which is where I think the real danger lies. But in this essay I want to focus on election day itself, intimidation at the voting place.
In general in America, intimidating voters is illegal. It is a federal crime to "intimidate, threaten, [or] coerce any other person for the purpose of interfering with the right of [that] other person to vote or to vote as he may choose." On Tuesday if you are intimidated or see voter intimidation, please report it. The ACLU-recommended hotline is 1-866-OUR-VOTE, the Democratic Party’s hotline is 1-833-336-8683, and the US DoJ’s hotline is 800-253-3931. Despite the law, America has a long ugly history of voter intimidation, particularly against Black voters.
The recent history starts with the Ballot Security Task Force of 1981. This was a group of Republican-organized off duty police officers hired in New Jersey to maraud African-American and Hispanic neighborhoods on election day. They verbally and physically intimidated voters and blocked access to the polls. This action and various other Republican-led voter suppression efforts were so egregious the Republicans were forced into a consent decree to not suppress the vote, with significant federal oversight. That agreement expired in 2017.
So now the Republicans no longer have their hands tied and seem to be reverting to various forms of voter suppression and intimidation. Many of them are murky and on the margins, so first let’s clarify the simplest cases of how voters could be intimidated.
US Military: It is illegal for the US military to be at polling places. 18 U.S. Code § 592 makes this very clear. No one considers this a real threat in 2020.
National Guard: it is legal for the various National Guards to help at polling places if requested by the state. Generally, unarmed and out of uniform. Mostly they’re asked to serve as poll workers; set up tables, help run the polling station. It’s historically been calm and uncontroversial. In 2020 there has been concern about some states calling up the National Guard for security; Greg Abbott in Texas, for instance. The assumption at the moment is they’re only on standby in case of violence. If they enter any polling stations armed or in uniform, it will be a very alarming turn of events.
State and local police: it depends on state law, but in many states it is legal for police to be at a polling place, in uniform and armed. In five states it’s required! Voter intimidation is still illegal, but it’s easy to see how the mere presence of an armed white cop watching voters could be intimidating for voters, particularly Black voters. It is what it is; the main problem to look for is a pattern of deliberate police intimidation.
Barr’s Army: this summer Trump and Barr created an unregulated paramilitary organization. They attacked peaceful protestors in Washington DC so that Trump could do a photo op, then later occupied parts of Portland for several weeks. Much of that army is made of civilian DHS agents who are not subject to military regulations. It’s entirely unclear whether it would be legal for this force to show up at a polling place, although it would certainly be a frightening turn to facism.
Unlawful militias: it is completely illegal for a random armed citizens group to show up at or near a polling place and intimidate voters. That doesn’t mean there’s no risk of it happening. The only appropriate response would be a swift capture and arrest by local or national law enforcement.
Poll watchers: there’s lots of room under "poll watchers" and "voting advocates" to have potentially hostile people in a polling place. Passive poll watching is fine, but it’s possible to abuse the role or the access to disenfranchise voters. Trump has made a lot of noise about having watchers to stop imaginary voting fraud, but "poll watching" is also a classic intimidation technique. There’s been some troubling signs of who’s being recruited to be poll watchers: ex-special forces and retired police in Minnesota for instance. Note the organization of those watchers is literally called Trump’s Army; the militarized language is not an accident.
Random people: I put this here because it’s just so American: in some states like Michigan an individual can carry a gun while voting. I assume it’d be illegal for them to do anything with the gun but why the hell is it even allowed?
That’s all the niceties of the law. The reality on the ground could be very different. If a few hundreds ICE thugs show up at a Philadelphia polling place on Tuesday in anonymous uniforms with grenades and assault weapons in hand, what’s going to happen? An emergency court order, several hours of chaos, and a suppressed vote. What if rumors spread in Detroit that there’s a group of militia guys running around threatening to shoot people near the polling places? How many people won’t take the risk to go vote?
The only thing stopping voting intimidation in the moment is basic decency. But the Republicans have a history of not caring about decency when it comes to voting rights. I don’t think they’d go so far as an armed coup but there’s plenty of room at the margins for intimidating enough voters to affect the vote. Know your rights. Report any intimidation: 1-866-OUR-VOTE. Trump is very likely going to lose a fair vote; do not let him steal this election.