Some voter intimidation is blatant, like the time when off-duty sheriff’s deputies and police officers in New Jersey patrolled predominantly Black and Latino polling places on Election Day while wearing armbands with a made-up name, the National Ballot Security Task Force.
Carrying revolvers and two-way radios on their belts, they questioned voters, ripped down campaign signs and harassed poll workers, all on behalf of the Republican Party, whose candidate for governor won by a razor-thin margin of 1,797 votes.
The New Jersey scheme, which took place in 1981 but is still remembered for its brashness by those who track transgressions at the polls, was clear-cut enough that the Republican National Committee agreed afterward to refrain from targeting minority voters in the name of preventing supposed voter fraud. But just what constitutes unlawful behavior on Election Day can be challenging to define, experts say, and can differ drastically from one jurisdiction to the next.
Such questions may be crucial this Election Day as experts warn of potential unrest and increased activity by far-right extremists, and as President Trump’s request that supporters “go into the polls” and “watch very closely” has resulted in confusion over what amounts to legal poll watching and what crosses the line into unlawful intimidation.
“It is gray,” said Justin Levitt, an election law expert at Loyola Law School in Los Angeles. “The intent to keep people away from the polls is impermissible. But there’s some difference between what might make people uncomfortable and activity undertaken to keep people away.”
Federal law prohibits the use of threats, duress, outright violence or economic coercion to suppress or induce voting. But as a Justice Department guide to prosecuting election crimes notes, voter intimidation is “amorphous and largely subjective in nature” and is “difficult to prosecute.”
In the lead-up to Nov. 3, law enforcement officials across the country have established task forces and hotlines aimed at reassuring the public of its right to vote in peace. In Minnesota, the attorney general asked a security company that advertised for military special operations veterans to guard polling sites, among other places, to “cease and desist.”
And yet the courts have rarely helped clarify the precise definition of voter intimidation, in part because such cases are often decided in civil — not criminal — court. The New Jersey case, for example, was settled with a consent decree, which the Republican National Committee was found to have violated or been in danger of violating several times. A judge allowed it to expire almost three years ago.
Many states establish a buffer zone around polling sites inside which electioneering or campaigning is not allowed. But intimidation is unlawful no matter where it occurs, said Mary McCord, legal director of the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center.
In a list of behaviors that “likely would constitute illegal voter intimidation,” the Georgetown institute includes “confronting voters while wearing military-style or official-looking uniforms,” “following voters to, from, or within the polling place” and “aggressively approaching voters’ vehicles or writing down voters’ license plate numbers.” Many state laws explicitly forbid blocking entrances to polling sites.
With increased tensions, police chiefs are wrestling with how best to enforce voter intimidation laws, in part because uniformed officers can themselves be perceived as intimidating.
“You don’t want the most visible form of government, the ‘oppressors,’ standing there looking and giving the impression of, ‘Well, who are you voting for?’” said Michel Moore, the police chief in Los Angeles, where uniformed officers are barred from the polls unless they are voting or “conducting official business.”
Some states restrict officers from polls unless they are authorized or summoned by election officials while others, like New York, require at least one officer to be stationed at each New York City polling site.
Six states prohibit all guns at polling places — Arizona, California, Florida, Georgia, Louisiana and Texas — according to the Giffords Law Center, and four more states — Mississippi, Missouri, Nebraska and South Carolina — ban concealed weapons there. Guns may also be forbidden in polling sites that are in schools or other places where firearms are not generally allowed.
Many open-carry states allow individuals to wear holstered guns at the polls, but experts said guns that are brandished, or carried by paramilitary groups, quite likely cross the line to intimidation.
In Michigan, Secretary of State Jocelyn Benson tried to ban openly carried guns at polling sites this year, citing the potential for them to scare or intimidate voters. But on Tuesday a state judge blocked the directive, saying it created a new administrative rule without following procedure.
Still, experts said that in a conflict between voters’ right to cast ballots peacefully and the Second Amendment right to bear arms, the interest of voters would likely prevail, and that election officials had wide latitude to prevent disruptions.
Cases involving weapons at the polls are rare, and one of the most notorious in recent times involved a nightstick, not a gun.
In 2008, two members of the New Black Panther Party, a racist Black separatist group, stood outside an overwhelmingly Black and Democratic polling place in Philadelphia wearing black outfits that were described as uniforms. One of them held a billy club and identified himself as “security.”
Though officials said no voters complained of intimidation, and no criminal charges were filed, the case became a celebrated cause among conservatives, who criticized the Justice Department for dropping most of a related civil lawsuit after President Barack Obama took office.
That case was handled by local authorities as most disturbances at the polls are across the country: on the spot. The man with the billy club was asked to leave, and he complied.
Other reports of voter intimidation have involved largely legal activity such as voter challenges. Virtually every state allows election observers, sometimes called poll watchers or challengers. Some permit voters to be challenged on Election Day on specific grounds, such as their residency, citizenship, lack of proper identification or because they are believed to have already voted.
In the past some groups have used methods including mass mailings to generate lists of potentially ineligible voters. To prevent the use of such lists, which are often riddled with errors, some states require that the challenger have personal knowledge of the voter’s ineligibility.
The Trump campaign has said it is training 50,000 volunteer poll watchers, which has raised concerns about voter intimidation. In Minneapolis, the police union put out a call on behalf of a Trump campaign official for retired officers to volunteer as challengers in “problem” areas, according to a report in The Star Tribune.
“Poll Challengers do not ‘stop’ people, per se, but act as our eyes and ears in the field and call our hotline to document fraud,” the official wrote in an email, according to the report. “‘We don’t necessarily want our Poll Challengers to look intimidating.’”
The rules for who can act as a poll watcher vary widely — sometimes members of the general public can sign up, sometimes it must be a resident of the county or election district, and sometimes watchers must be certified or appointed by candidates. In Minnesota they are limited to one per party at each site.
In 2010, there were numerous accounts in Houston of voters in predominantly Black and Latino precincts feeling intimidated by a Tea Party group called the King Street Patriots, which started an initiative called True the Vote. Texas does not allow voters to be challenged on Election Day, but some voters reported that the watchers hovered over them or admonished them. Many states, including Texas, forbid election watchers from speaking directly to voters.
Art Acevedo, chief of the Houston Police Department, said any concerns at polling places should be raised with election officials or law enforcement.
“For those that feel like they need to monitor a polling location for any irregularities, we’ve had to explain to them that, no, you don’t intervene,” he said. “Don’t interfere. You don’t insert yourself.”
True the Vote also appeared in Wisconsin in 2012, during a recall election for Scott Walker, the Republican governor at the time. Election officials there complained that poll watchers were disruptive, slowed voting enough to discourage some of those waiting in line, and circulated unsubstantiated reports of busloads of people coming from other states to illegally vote.
But in the end, only a few polling places reported such issues. In fact, experts say that declarations by right-wing groups that they will marshal tens of thousands of volunteers to take aggressive action at the polls often fizzle.
“It’s always much more smoke than fire,” said Tova Wang, an elections expert and visiting fellow at the Harvard Kennedy School. “I worry that it’s more about deterring people and scaring people from the polls than it is about a real plan.”