Election Watchers Keep an Eye on the Fringes of Voter Intimidation
Along with unprecedented early voting numbers and enthusiasm has come some tension at polling places throughout Ohio. And that’s ratcheted up concern about voter intimidation. The actions of some at the polls could be criminal, others just make voters uncomfortable, and the line between those two is not always clear.
The final week of early voting at the Stark County Board of Elections began with a truck flying a brilliant blue Trump flag cruising the parking lot, a Democratic sound truck offering free donuts and masks, and some of the hundreds of voters in between wondering if someone was breaking the law. Some challenged the Democratic campaigners who noted they were outside the legal perimeter. Others said the Trump truck was closer than legally permissible to the voters stretching around the building and through the parking lot.
But Jen Miller of the League of Women voters of Ohio noted, “Sometimes things feel like intimidation that may not quite be.”
Sorting through it all
To help voters sort through it all, the League is among the partners in a voter protection project that includes a hotline to report problems around the state and country. The reports to 866-OUR-VOTE range from delays in getting absentee ballots to groups carrying guns adjacent to polling places. The nonpartisan coalition manning the hotline follows up with elections officials and others, including lawyers. But Miller noted that conflict is not automatically a legal violation.
“In Franklin County, we had both pro-life and pro-choice folks standing outside of the electioneering area and kind of having their own arguments among themselves,” she said. “It was stressful for people, some really graphic images. That’s gray as to whether that would be intimidation or not.”
What likely could have cleared up the gray would be if the protesters decided to direct threats at the voters themselves. That could have violated a key tenant of the federal Voting Rights Act, which says in part that “no person … shall intimidate, threaten, coerce ... any other person for the purpose of interfering with the right of [that] person to vote ."
The prohibitions include a range of actions, such as giving voters misinformation about the consequences of their voting, grilling them about their English speaking skills, and physically threatening them or blocking their path to the polls.
Ohio law adds some other caveats, including establishing a 100-foot campaign-free zone around a polling place. And when the lines spill out the doors as they have this year, it sets a 10-foot zone separating campaigners from voters.
Violations that are hard to measure
Federal Laws governing voter intimidation
The federal voter intimidation laws say, in part, “no person … shall intimidate, threaten, coerce ... any other person for the purpose of interfering with the right of [that] person to vote or to vote as he may choose." That includes:
- Physically blocking polling places
- Yelling at or threatening voters, including calling them names, at or near a polling place
- Interrogating voters, including about their citizenship, criminal records or other voter qualifications
- Looking over people’s shoulders while they vote
- Falsely claiming you’re an elections official.
- Displaying misleading signs about voter fraud and criminal penalties.
- Targeting non-English speakers and people of color (No state requires English language to vote nor to take a test in order to vote.)
If someone is found guilty of violating the law, they face up to a year in prison and a $1,000 fine.
But sometimes violations can be hard to measure, and intention makes all the difference. Freda Levenson of the ACLU of Ohio, another partner in the hotline, says that would be the case with a pro-Trump rally near the Tuscarawas County Board of Elections last weekend in which some people were openly carrying guns.
“Perhaps they just had the assembly there in order to have an audience across the street, or maybe they intended to send some kind of intimidating message,” Levenson said.
This week, the ACLU sent a letter to Ohio Secretary of State Frank LaRose laying out the range of laws applying to voter intimidation.
“We fear this rhetoric has been seen as a dangerous call for voter intimidation,” the letter read. In fact, we’ve recently received complaints about voter intimidation and harassment tactics emerging across the state. No voter should have to choose between their safety and making their voice heard at the ballot box.”
The letter did express appreciation for LaRose’s recent statements that “you will not tolerate any kind of intimidation or suppression.
The ACLU also looks for patterns in calls to the hotline that may underscore more widespread problems. And both it and the Lawyers Committee for Civil Rights Under Law have assigned attorneys in cases where voters are not only harassed, but prevented from voting for other reasons.
Jon Greenbaum of the Lawyers Committee, which helped establish the voter protection project, said concern about suppression is nothing new, though this election has ratcheted up fears.
“I’ve been doing voting rights since 1997, first at the Department of Justice and for the last 17 years for the Lawyers Committee, and the level of intensity with respect to this election is unprecedented,” he said.
But awareness and resources may also be unprecedented. Beyond formal efforts like the hotline, Greenbaum noted the structure of this election itself can help because extended early voting makes it harder for suppression efforts to hit their targets.
ORC 3501.35 No loitering or congregating near polling places.
A) During an election and the counting of the ballots, no person shall do any of the following:
(1) Loiter, congregate, or engage in any kind of election campaigning within the area between the polling place and the small flags of the United States placed on the thoroughfares and walkways leading to the polling place, and if the line of electors waiting to vote extends beyond those small flags, within ten feet of any elector in that line;
(2) In any manner hinder or delay an elector in reaching or leaving the place fixed for casting the elector's ballot;
(3) Give, tender, or exhibit any ballot or ticket to any person other than the elector's own ballot to the precinct election officials within the area between the polling place and the small flags of the United States placed on the thoroughfares and walkways leading to the polling place, and if the line of electors waiting to vote extends beyond those small flags, within 10 feet of any elector in that line;
(4) Exhibit any ticket or ballot which the elector intends to cast;
(5) Solicit or in any manner attempt to influence any elector in casting the elector's vote.
(1) Except as otherwise provided in division (B)(2) of this section and division (C) of section 3503.23 of the Revised Code, no person who is not an election official, employee, observer, or police officer shall be allowed to enter the polling place during the election, except for the purpose of voting or assisting another person to vote as provided in section 3505.24 of the Revised Code.
(2) Notwithstanding any provision of this section to the contrary, a journalist shall be allowed reasonable access to a polling place during an election. As used in this division, "journalist" has the same meaning as in division (B)(2) of section 2923.129 of the Revised Code.
(C) No more electors shall be allowed to approach the voting shelves at any time than there are voting shelves provided.
(D) The precinct election officials and the police officer shall strictly enforce the observance of this section.
There’s also a tool that’s played prominently in documenting police abuse this summer: the cell phone. Voters witnessing intimidation at the polls can more easily document the behavior, though Greenbaum advised caution:
“If anybody feels they’re in some sort of physical danger by starting to record things, they shouldn’t be doing that,” he said. “The last thing we want to do is to have somebody who’s physically hurt at the polls.”
Many elections boards are hiring more monitors for Election Day to rotate among the polling locations to look for trouble, and part of poll worker training this year is more guidance on what to do about conflicts. Some boards also have plans for sheriff’s and local police to be stationed nearby.
Regardless of whether actions turn out to be illegal, the League of Women Voters is encouraging voters to report their experiences. And recognizing that things can be legal, but still unnerving, Jen Miller said the League has begun training clergy and social workers to diffuse problems at the polls.
“At Tuscarawas County, we actually had clergy in their robes and collars trying to exude a sense of calm and peace, also to try to help de-escalate the situation so that nothing does go any further,” she said.
So far this year, the only criminal charges tied to voter intimidation in Ohio have been against two out-of-state right-wing operatives, Jacob Wohl and John Burkman. They’re accused of orchestrating tens of thousands of robocolls to Black voters that falsely claimed mail-in voting information would be shared with police, credit-card companies and the CDC, which would then require the voters to get vaccinations.
Llranza Payton is a Canton voter, one of the hundreds who lined up at the Stark County Board of Elections Sunday, and one of many who were African-American. She said, in a way, such efforts to deter Black voters is reaffirming.
“Your vote obviously has some importance in it because if it didn’t have any importance, people wouldn’t be fighting for you not to,” she said.
Advocates hope they’re equipping voters with what they need to ensure the fight is a fair one.
(A) No person shall do any of the following:
- (1) By force, fraud, or other improper means, obtain or attempt to obtain possession of the ballots, ballot boxes, or pollbooks;
- (2) Recklessly destroy any property used in the conduct of elections;
- (3) Attempt to intimidate an election officer, or prevent an election official from performing the official's duties;
- (4) Knowingly tear down, remove, or destroy any of the registration lists or sample ballots furnished by the board of elections at the polling place;
- (5) Loiter in or about a registration or polling place during registration or the casting and counting of ballots so as to hinder, delay, or interfere with the conduct of the registration or election;
- (6) Remove from the voting place the pencils, cards of instruction, supplies, or other conveniences furnished to enable the voter to mark the voter's ballot.
- (B) Whoever violates division (A)(1) or (2) of this section is guilty of a felony of the fifth degree. Whoever violates division (A)(3) , (4), (5), or (6) of this section is guilty of a misdemeanor of the first degree.