At the first 2020 presidential debate on Sept. 29, President Donald Trump said the far-right fascist group Proud Boys should “stand back and stand by,” comments embraced by the group’s members as supportive of their ideology. Trump also remarked during the debate that his supporters should “go into the polls and watch very carefully.”
“Voter intimidation efforts have a long and unfortunate history in this nation,” according to an Oct. 13 blog post by the Voter Protection Program, a bipartisan group of former state and federal officials and top municipal law enforcement leaders aiming to help state attorneys general ensure a safe, free and fair general election. “These efforts often target communities of color. In the past, after hearing statements like the president’s, vigilantes have aggressively patrolled polling stations. And while they rarely show up at numerous locations, even minor disruptions can be amplified and publicized to intimidate voters more broadly.”
With rising potential for intimidation at the polls during the 2020 general election, Journalist’s Resource is turning to what the research says. We’ve summarized four scholarly articles that can help journalists covering voter intimidation offer nuance in their reporting. More on those articles below.
While poll watchers from both the Democratic and Republican parties are common at polling sites, those who aren’t official poll watchers could run afoul of state laws. The Institute for Constitutional Advocacy and Protection at Georgetown Law has put together fact sheets for each state, laying out laws on unauthorized private militias showing up to polling sites.
Also relevant: This presidential election will be the first in almost four decades that Republican party organizations won’t be subject to a federal decree requiring that federal judges review their ballot security operations. Mark Krasovic, associate history professor at Rutgers University, recently explained in The Conversation the incident that led to that decree:
In November 1981, voters in several [New Jersey] cities saw posters at polling places printed in bright red letters. “WARNING,” they read. “This area is being patrolled by the National Ballot Security Task Force.” And voters soon encountered the patrols themselves. About 200 were deployed statewide, many of them uniformed and carrying guns.
In Trenton, patrol members asked a Black voter for her registration card and turned her away when she didn’t produce it. Latino voters were similarly prevented from voting in Vineland, while in Newark some voters were physically chased from the polls by patrolmen, one of whom warned a poll worker not to stay at her post after dark. Similar scenes played out in at least two other cities, Camden and Atlantic City. Weeks later, after a recount, Republican Thomas Kean won the election by fewer than 1,800 votes.
Democrats, however, soon won a significant victory. With local civil rights activists, they discovered that the “ballot security” operation was a joint project of the state and national Republican committees. They filed suit in December 1981, charging Republicans with “efforts to intimidate, threaten and coerce duly qualified black and Hispanic voters.”
The peer-reviewed and law review articles featured here discuss federal legal recourse for voters intimidated at the polls, recourse for voters intimidated online, analyses of historical data on voter intimidation in America and political coercion at the workplace. Law review articles are different from peer-reviewed papers in that they typically make specific, sometimes subjective legal arguments. Keep reading:
True Threats: Voter Intimidation and the Constitution
Daniel P. Tokaji. The Harbinger, 2015.
In this article, Daniel Tokaji, now dean of the University of Wisconsin Law School, responds to a previous article in The N.Y.U. Review of Law & Social Change. The Harbinger, an online publication of The N.Y.U. Review of Law & Social Change, runs timely and newsworthy articles on American law.
The authors of the original article, attorneys Ben Cady and Tom Glazer, argue that people who have experienced voter intimidation might seek legal recourse through Section 11(b) of the Voting Rights Act.
That section of the 1965 law reads in part: “No person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote.”
The section is “seldom used in litigation, and there is little case law exploring its scope,” Cady and Glazer write, though the legislators who wrote the act considered the section to be an “important part of the statute and a significant improvement over existing prohibitions on voter intimidation.”
Tokaji partially agrees with Cady and Glazer. He writes they “persuasively argue that this statute was designed to dispense with any requirement of intent, including both racially discriminatory intent and an intent to intimidate.” In other words, they argue that an intimidated voter seeking legal recourse under Section 11(b) doesn’t have to prove the person or group who allegedly intimidated them meant to intimidate them.
But Tokaji raises an issue relevant to potential voter intimidation during the 2020 general election, centering on the First Amendment guarantee of free speech. When it comes to free speech, intent to intimidate comes into play, according to Tokaji.
“What seems like intimidation to a would-be voter may well be free speech” to a group or individual perpetrating alleged intimidation — if, for example, that group or individual didn’t mean to intimidate voters but rather meant to “promote electoral integrity,” Tokaji writes. How the intersection of free speech and voter protection against intimidation might play out centers on a legal principle called the “true threats” exception.
He explains that in 2003 in Virginia v. Black, the Supreme Court defined “true threats” as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” If voters are outright threatened with physical violence, there would be no conflict between Section 11(b) and the First Amendment, according to Tokaji. But the constitutionality of Section 11(b) is less certain in cases involving statements private individuals make that are not obviously intended to threaten violence. He concludes:
“There is no doubt of section 11(b)’s consistency with the First Amendment where there is an intent to intimidate voters through a threat of physical violence. It is less clear whether section 11(b) may constitutionally be applied where non-violent harms are threatened or the intent to intimidate is lacking. However, because it provides only civil remedies, the statute is probably consistent with the First Amendment.”
The Pernicious Problem of Platform-Enabled Voter Intimidation
Christopher Conrad. Georgetown Law Technology Review, 2020.
Christopher Conrad, a recent graduate of Georgetown Law who’s now a clerk for a federal judge in the Eastern District of Virginia, chronicles the shift of voter intimidation in America from overt physical violence to more subtle — and virtual — means.
“As part of this transition to more inconspicuous forms of voter intimidation, individuals and political organizations have largely supplanted local law-enforcement officials and white-supremacist groups as the main perpetrators,” Conrad writes. “Instead of polling places, these actors have taken to Internet platforms to suppress the franchise of minority voters.”
He further points out that it’s unlikely a social media platform like Facebook would be able to act quickly enough to remove content that intimidates voters. Conrad spotlights examples of Facebook posts with covert and overt threats of violence from Donald Trump supporters against Hillary Clinton supporters during the 2016 presidential campaign.
“When users believe that their acts will not be attributable to them, they are more likely to defy social norms and act destructively without fear of external sanction,” he writes. Conrad puts Section 11(b) of the Voting Rights Act in the context of online voter intimidation. An example: the “reasonable speaker” test that courts use to assess whether speech is protected by the First Amendment. Simply put, would someone expressing a view online reasonably think their content was truly threatening?
One of the 2016 Facebook posts Conrad mentions, written by someone who identifies as a military veteran, strongly suggests physical violence against civilians if Trump lost that year’s presidential election. The message is clearly threatening, according to Conrad. But, if the writer had set the content to private so that only their friends could see the post, and if that private network consisted of like-minded people, the writer might reasonably think “that his macho bravado would prompt grunted laughter among his audience, rather than fear.” An individual posting such content could be liable if one of the poster’s Facebook friends shared it to a broader network of users and if one of those users was “reasonably intimidated by it,” Conrad writes.
Conrad raises several legal questions and contradictions when it comes to protecting voters from intimidation online. But the crux is that federal voter intimidation laws, written to curb in-person intimidation, are “inadequate to protect suffrage” when it comes to online intimidation.
Illicit Tactics as Substitutes: Election Fraud, Ballot Reform, and Contested Congressional Elections in the United States, 1860-1930
Didi Kuo and Jan Teorell. Comparative Political Studies, 2016.
What does an Australian ballot have to do with historical voter intimidation and electoral fraud in America? A lot, according to the authors. Didi Kuo is associate director for research at the Stanford University Center on Democracy, Development and the Rule of Law. Jan Teorell is a political science professor at Lund University in Sweden.
An Australian ballot is “an official ballot printed at public expense on which the names of all the candidates and proposals appear and which is distributed only at the polling place and marked in secret.” The concept came out of South Australia in the mid-1850s. By the Civil War, every state in the U.S. used written ballots — except Kentucky, which still used oral voting for roughly two decades after the war. Until the 1890s, when Australian ballots became widespread in the states, political parties commonly printed ballots.
“Election secrecy was easy to violate, because the tickets varied in color and size, and the party agents near the polling stations could monitor with whom the voters associated before they approached the voting window,” the authors write. “The Australian ballot, by contrast, made the state responsible for printing ballots at public expense.”
Kuo and Teorell look specifically at 465 contested races for the U.S. House of Representatives from 1860 to 1930 to assess how the adoption of Australian ballots changed instances of voter intimidation and fraud. The authors identify 548 cases of fraud, including nearly 100 instances of violence. They also account for disenfranchisement of Black voters through efforts like literacy tests and poll taxes following Reconstruction.
They find that intimidation and vote buying decreased in the years following the adoption of Australian ballots while “more opaque forms of election fraud, such as registration fraud and ballot stuffing, actually increased as an effect of the introduction of state-printed ballots.” Ballot stuffing generally refers to a voter voting multiple times.
“We further find that disenfranchisement obviated the need to manipulate voters directly, but had no visible effect on ballot fraud,” Kuo and Teorell conclude.
American Employers as Political Machines
Alexander Hertel-Fernandez. The Journal of Politics, 2017.
Separate from intimidation at the polls, voters may also face political intimidation — or at least coercion — at the workplace.
“Throughout the nineteenth century there were accounts of employers using physical or economic threats to pressure their employees into supporting firm-favored candidates,” writes Alexander Hertel-Fernandez, an associate professor of international and public affairs at Columbia University. “Outright intimidation was later curbed by the passage of secret ballot laws and other electoral reforms but employers continued to talk politics with their employees throughout the first half of the twentieth century.”
Employers today can still legally coerce workers into actions favoring a particular politician or party or platform. The Supreme Court in Citizens United v. FEC in 2010 allowed companies to “direct unlimited corporate resources — which include worker time and effort — toward partisan electoral politics so long as firms do not directly coordinate with candidates,” Hertel-Fernandez writes. Most private employers can discipline or fire employees who refuse their requests to support political stances, according to Hertel-Fernandez.
Examining roughly 800 responses from the 2015 Cooperative Congressional Election Study, Hertel-Fernandez finds 5% of workers had been contacted by their employer in the past year about participating in some way in a political campaign. Slightly more — 7% — reported political contact from an employee union. Employer mobilization was most strongly associated with employees attending a political meeting, donating to a candidate or political party and volunteering for a campaign.
Hertel-Fernandez also finds that around the 2014 election cycle, which included U.S. Senate, House and gubernatorial races, employer political recruitment was as common as union political mobilization.
“Employers are not simply recruiting their workers into politics to increase civic participation in general; rather, they are mobilizing their employee base in order to advance a specific set of favored causes and candidates,” he writes.
Pressure from one’s boss to engage in politics beneficial to the company isn’t the same as overt physical intimidation at the polls, but it is coercive given the power dynamic between employee and employer. Hertel-Fernandez explains:
“In all, the legal implications of Citizens United, coupled with the lack of federal protections against political retaliation in the workplace, mean that political recruitment requests from an employer may carry an extra weight for workers as employees trade off between their job security and political views.”
Further reading: Voter suppression and disenfranchisement
Anthony Brown, Joanna Batt and Esther June Kim. Social Education, 2020.
Shannon Portillo, Domonic Bearfield and Norma Riccucci. Public Integrity, 2020.
Lydia Hardy. Mercer Law Review, 2020.