Voter Intimidation: Guide to Voter Rights and Poll Watchers

The Preamble to the U.S. Constitution begins with “We the People . . . ". These words signal that the will of the people is the source of power and legitimacy in the United States. Voting is the method through which the will of the people is effected.

Various state and federal laws prohibit voter intimidation. Voter intimidation occurs when someone intimidates, threatens, or coerces someone to either not vote or to influence them to vote a certain way.

This article summarizes voting rights. It also provides information about federal laws prohibiting voter intimidation.

Brief History of Voting Rights

When the states ratified the Constitution, it was unclear who had the right to vote. The Framers included the right to vote but did not specify who possessed the right. Into the 1800s, the decision about who could vote was primarily left to state law. During that time, generally, only white landowners could vote in elections.

Various groups have challenged the right to vote throughout history. The Fifteenth Amendment to the U.S. Constitution gave citizens voting rights regardless of race or color. The Nineteenth Amendment gave women the right to vote in 1920. The Voting Rights Act of 1965 (VRA) eliminated states' use of literacy tests and other voting prerequisites. The VRA provides for civil lawsuits regarding voter intimidation in federal elections.

The Civil Rights Act of 1964 prohibited states from unequally applying voter registration requirements. Sections of the Civil Rights Act of 1960 allowed federal courts to appoint voting referees to monitor voter registration in jurisdictions which had historically implemented discriminatory practices. The Voting Rights Act of 1965 allowed federal courts to appoint election officials, such as examiners and observers, in jurisdictions that previously discriminated against voters.

Currently, most people over the age of 18 may vote in both federal and state elections. The right to vote is a rich topic deserving study. For more information about voting and elections, consider browsing the following articles:

• Voting Rights History and Law
• Voting Rights
• Introduction to Federal Voting Rights Laws

While voting rights have come a long way, some people and groups still try to disrupt the voting process. The rest of this article describes voter intimidation and related criminal penalties.

Voter Intimidation Basics

The right to vote free from intimidation is foundational to a democratic society. While states often have election laws against voter intimidation, this article focuses on the federal laws against it.

One federal law that prohibits voter intimidation can be found at 18 U.S.C. § 594. One commits this crime by deterring or influencing voting activity through threats to deprive voters of something they already have, such as jobs, government benefits, or, in extreme cases, their safety.

The law states:

Whoever intimidates, threatens, coerces, or attempts to intimidate, threaten, or coerce, any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose, or of causing such other person to vote for, or not to vote for, any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner, at any election held solely or in part for the purpose of electing such candidate [has committed voter intimidation].

Anyone who interferes or conspires to interfere with a person's right to vote faces a federal misdemeanor. They may face up to one year in prison, a hefty fine, or both if convicted.

Other federal laws protect against intimidation regarding voter registration (52 U.S.C. § 20511 (1)) and using force or threats to intimidate other registered voters, those running for office, or others involved in the election process (18 U.S.C. 245(b)(1)(A)).

Voter Fraud

Voter fraud involves using deception concerning an election. For example, the following are examples of voter fraud:

• Voting more than once in an election
• Voting via an absentee ballot, then voting in person in the same election
• Casting a fraudulent ballot
• Committing or attempting to commit fraud concerning an election

States have their own laws that identify specific actions amounting to voter fraud. For example, in Florida, voter fraud involves intentional deception or misrepresentation in an election. Law enforcement may arrest people that they suspect committed voter fraud. The penalties for voter fraud differ from state to state.

To combat voter fraud, Florida passed a law allowing its prosecutors to prosecute alleged voter fraud identified by election officers. Critics of the law say that this allows unfair prosecutions of people who, in good faith, unknowingly commit voter fraud due to confusion about their voting eligibility.

How Does Voter Intimidation Happen?

Over the years, people have attempted to intimidate voters in many ways. Common methods include lying or spreading false information about voter requirements. Others include threats or actual violence. Examples of voter intimidation include the following:

• Verbal threats of violence meant to intimidate voters
• Violence in or around polling locations
• Brandishing guns near polling sites
• Blocking the entrance to a polling location in a general election
• Following voters to and from the polls
• Spreading false information about voting requirements or prerequisites
• Harassing voters about whether they possess the qualifications to vote

All of this is done to intimidate or discourage a person from voting with no basis in law or fact.

Examples of Voter Intimidation

While the 2016 presidential election saw allegations of intimidation up to Election Day, other controversial instances have occurred. This section details alleged cases of voter intimidation.

Armed Men in Front of a Polling Place

In 2008, a case of voter intimidation surfaced in a Philadelphia neighborhood. Two New Black Panther Party members stood outside a polling place dressed in black paramilitary uniforms. After looking into the incident, the U.S. Department of Justice eventually dismissed the case.

Robocalls Threatening Black Voters

Leading up to the 2020 presidential election, two men created a recorded phone message regarding the election. The “robocall" threatened that the government may arrest mail-in voters depending on how they voted. The calls also threatened that the government may force them to get vaccinated. The two men made approximately 85,000 robocalls to predominately Black neighborhoods in several states.

A grand jury indicted the men on multiple counts of telecommunications fraud, among others. In one of several cases against the men, an Ohio judge ordered them to do 500 hours of community service registering voters in Washington, D.C. They also received house arrest sentences, and they were fined. The prosecutor in the case noted the men's scheme “attempted to disrupt the foundation of our democracy."

The state of New York sued the men in federal court, and the Federal Communications Commission (FCC) fined them $5.1 million. In the New York case, the judge found the defendants' actions violated the Voting Rights Act by threatening and attempting to suppress voters.

First Amendment Issues

The First Amendment to the United States Constitution protects citizens' right to free speech and assembly. Both the right to vote and the right to free speech are fundamental in a democracy. Lawmakers must narrowly tailor voter intimidation laws to allow people to engage voters while at the same time protecting the right to vote.

In 1992, the U.S. Supreme Court upheld a Tennessee state law concerning campaigning in front of polling locations. Specifically, the state law banned campaigning within 100 feet of polling sites. The Court noted that most states recognize that having “some restricted zone" in front of polling places is necessary in protecting the right to vote “freely and effectively." Most states have similar laws.

Election Protection and Poll Watchers

Laws against voter intimidation punish those who interfere with voting rights. But there are other safeguards at polling locations.

Poll watchers work at polling stations. Their job is to observe the voting process at polling locations on election day. State law determines their specific duties, obligations, and restrictions. They're often members of a political party. Generally, they monitor the election process to ensure a fair election and that no one commits an unlawful election offense. They typically cannot violate voter privacy, and they cannot act to disrupt an election.

If a poll watcher challenges a voter's qualifications to vote, the challenged voter may usually still cast a provisional ballot. The voter may be allowed to cast a regular ballot depending on state law. The regular vote will count unless the challenge is sustained.

Texas recently passed a law regarding election workers and poll watchers. The law allows poll watchers to move freely throughout the polling location to observe the election process. If an election official rejects a poll watcher, the official may be subject to a Class A misdemeanor. The law also bans drop boxes for voters who want to use mail-in ballots.

Charged With Voter Intimidation? Speak With an Attorney

Voting rights have been a highly charged topic throughout U.S. history. Allegations of voter intimidation are serious and can lead to prison time. If you or someone you know is accused of voter intimidation, contact an experienced criminal defense attorney. An attorney can provide you with more information regarding the following:

• Your state's rules regarding time off on election day
• Federal and state requirements regarding voter identification issues
• What to do when someone violates your voting rights

If you are facing criminal charges, consider contacting a criminal defense attorney.