Chicago Mayor Lori Lightfoot wants to be prepared for any imaginable scenario. Running an election with record turnout during a pandemic was always going to be a challenge, but she also has to take seriously the possibility of violence and voter intimidation. She hopes the election and its aftermath will be peaceful, but she knows she can’t count on it.
“Given what we’ve experienced over the course of the spring and the summer, we can’t presume that what will happen on election night or the days before, and certainly not the days after are going to be peaceful,” she said.
Toward that end, Lightfoot ran an “all hazards drill,” with emergency management, law enforcement and election officials trying to game out every possible thing that could go wrong – unrest, violence, storms, COVID-19 outbreaks, arson. “We really threw in the kitchen sink,” she said. “If you were pitching this to a Hollywood producer, they’d say, no way this could happen.”
That same level of concern and preparedness is evident all over the country. State and local officials are having to assume things might turn grim. They’re working collaboratively to be sure any incidents can be addressed quickly. “There’s a long history of intimidation and violence associated with elections,” said Christopher Witko, a political scientist at Penn State University.
The Republican Party was barred nationally for nearly four decades from recruiting election observers to challenge voters’ credentials aggressively. The federal consent decree limiting the party’s activities expired in 2018, making this the first national election to be conducted without such restrictions.
For weeks, President Trump has called for 50,000 people to watch the polls in swing states. Parties and candidates can send observers to monitor polling places, but they have to be certified. This month, a federal judge threw out a Trump lawsuit challenging Pennsylvania laws regarding poll-watching and mail ballot collections and counting. “Keep your Proud Boys, goon squads and uncertified ‘poll watchers’ out of our city, Mr. President,” Philadelphia District Attorney Larry Krasner said Wednesday.
State and local officials insist they have worked out plans that will keep voters safe. They’ve put systems in place so that election judges can get help when there are incidents, ensuring that calls get answered quickly across agencies and up and down the chain of command.
“You extrapolate to the worst-case scenario, where you have homegrown militia deciding to screen voters at a polling place,” said Maine Secretary of State Matt Dunlap. “We can respond to that within minutes, if need be. Local and state law enforcement can be deployed.”
It’s a state and local matter. The federal government has a limited role in policing elections, including combating foreign interference and investigating voter fraud after the fact. Federal statutes block armed federal agents from being sent to polling places or seizing ballots. But a recent Justice Department memo overturns longstanding policies, allowing federal investigators to take steps before polls close, potentially interfering with election outcomes.
That has some state and local officials nervous. There have been other spheres where states traditionally had sole authority but now have to fight the feds, says New Mexico Attorney General Hector Balderas.
“While we’re far from seeing any activity that would be seen as federal overreach, we’ve seen other areas of law where you’ve seen a traditional states’ right battle play out in the courts,” Balderas said. “That could play out if the president invoked a position that exceeded federal authority.”
A Long History of Violence
Violence around Election Day has become rare in this country, but it’s been a recurring feature of American history. During the 1840s and 1850s, nativist groups assaulted immigrant communities in cities such as New York, Philadelphia and Cincinnati to block them from voting.
Following the Civil War, violence was a recurring feature of Southern politics, as Klansmen and Democratic leaders sought to prevent African Americans from voting. South Carolina’s “Edgefield Plan,” for example, was developed by a former Confederal general who called for citizen militias to suppress Black voting participation.
There was a reputational cost to the South in perpetrating violent attacks against voters. It was also inefficient. Despite attacks, including lynching, Black voters continued to show up at the polls. Rather than continuing to rely on intimidation, Southern states enacted laws to disenfranchise African Americans entirely. “Violence reduced Black turnout a lot, but Jim Crow laws basically took it to zero,” Witko said.
During his 1986 confirmation hearings as Supreme Court chief justice, William Rehnquist was accused by a former federal prosecutor of taking part in a 1962 GOP effort, known as Operation Eagle Eye, aimed at suppressing Black and Hispanic turnout in Arizona through “confrontation and intimidation.” Rehnquist denied the allegation.
During a contentious 1981 campaign for New Jersey governor, Republicans hired about 200 armed poll watchers – some in uniform – who challenged and confronted Black and Hispanic voters. GOP candidate Thomas Kean won by less than 1,800 votes.
“It was specifically targeted at Black and brown neighborhoods in cities,” said Mark Krasovic, a historian at Rutgers University-Newark. “It was very coordinated, it was funded by the RNC, it was a very organized, planned thing.”
It was this incident that led to the 1982 federal consent decree, a court order that blocked the Republican Party from deploying armed poll watchers or using race as a factor in its ballot security efforts. A judge refused the Democratic request to extend the order two years ago.
“We need every able-bodied man and woman to join the army for Trump’s election security operation,” Donald Trump Jr. said in a recent “defend your ballot” ad. “We need you to help us watch them.”
States Can Ban Militias
On Tuesday, the Michigan Court of Appeals affirmed a ruling that blocked Secretary of State Jocelyn Benson's order banning open carry of weapons at polling places next Tuesday. The state is appealing.
The atmosphere in Michigan is charged, with an alleged kidnapping plot against Gov. Gretchen Whitmer resulting in more than a dozen arrests. The governors of Virginia and Ohio have also been targets of alleged plots. On Tuesday, Phoenix police announced an officer had made a “credible threat” against Mayor Kate Gallego.
Political violence has repeatedly touched the lives of ordinary Americans this year. Protesters against racism and police brutality have frequently been confronted by self-styled militias and individuals releasing tear gas. In one high-profile Wisconsin incident in August, a teenager named Kyle Rittenhouse allegedly killed two protesters. Anti-racism protests have sometimes devolved into violence themselves, including the killing of a right-wing activist in Oregon in September.
Gun sales are up, with voters on the left and right concerned about how the other side will act if their preferred candidate is defeated. “Win or lose, someone’s going to be unhappy,” Lightfoot said.
Benson says that she views open carry as “potentially voter harassment.” She says she is working to protect the health and safety of voters to ensure their fundamental right to vote. “They will be protected on Election Day,” she said.
Dana Nessel of Michigan, along with other state attorneys general around the country, have been busy representing secretaries of state in a slew of late-season lawsuits challenging voting laws and procedures. State AGs are also using their “soft power” by issuing statements and holding repeated news conferences to stress their demands for safety, sending a strong signal to law enforcement.
Many AGs are working closely with mayors and other local officials. In turn, local officials are setting up operation centers and providing directives and advanced briefings to rank-and-file officers.
“We encourage poll observing,” said Nevada Attorney General Aaron Ford. “We discourage, highly, voter intimidation, and we’re going to be here to push back on that.”
Ford recalls that his parents and grandparents faced voter intimidation in Texas. As African Americans struggled to regain voting rights in the South a half-century ago, they encountered both vigilantes and government agents turning water hoses or siccing dogs on them. Although state and local officials are planning to have law enforcement positioned to respond quickly to incidents at polling places, for the most part they don’t want to have them stationed there, due to the historical resonance of uniformed officers intimidating voters.
A bigger concern, however, is armed paramilitaries or individuals. The Supreme Court has repeatedly made clear – from the 19th century to the current century – that even as individuals have the right to bear arms, states have the authority to ban paramilitary units, says Mary McCord, a Georgetown law professor.
“This activity is not protected by the Second Amendment,” she said. “For all the gray areas of the Second Amendment, this is not one of them.”