State laws dictate how far away campaign signs and workers need to be from polling places (AP Photo/Eric Gay/The Conversation).
By Kristin Kanthak
Author Edgar Allan Poe, the 19th-century master of American macabre fiction, may have died of dirty politics. According to legend, a gang of party “poll hustlers” kidnapped and drugged him. They forced him to vote, then abandoned him near death. Details are murky, but we do know Poe died in Baltimore days after the Oct. 3, 1849, election.
The story, though likely untrue, is certainly plausible. Election Day in 19th-century America was a loud, raucous, often dangerous event. Political parties would offer food, drink and inducements ranging from offers of bribes to threats of beatings to encourage voters to cast the party’s official ballot.
Reforms at the end of the century – particularly after an especially dirty 1888 presidential election – aimed to stop the shenanigans, assure the safety of voters and elevate the act of voting.
That is why the U.S. now has secret government-printed ballots rather than party-provided ballots. And all 50 states have laws that ban potentially intimidating behavior at polling places.
Yet there appears to be increasing risk of such voter intimidation. The Washington Post reports that the Republican Party has held “thousands of training sessions around the country on how to monitor voting and lodge complaints about … midterm elections.” Former President Donald Trump’s ally and conservative firebrand Steve Bannon has urged followers to head to the polls, claiming “We’ll challenge any vote, any ballot.” And Axios reports that “Proud Boys and the Oath Keepers are looking to sway the upcoming midterms in favor of their preferred candidates by signing up as poll workers and drop-box watchers.
The idea behind these anti-electioneering laws is to prevent the kind of “poll hustling” to which Poe may have fallen victim.
Party tough guys cannot follow – or drag – helpless voters into the polling place, or watch them to make sure they vote the correct ballot with the implicit threat that a “wrong” vote could result in a beating.
These laws generally prohibit campaign activities at or near polling places – wearing campaign paraphernalia, shouting slogans, even loitering inside those polling places. Distance requirements for campaigners, ranging from 10 feet from a polling place in Pennsylvania to 600 feet away in Louisiana, help to assure that secret ballots are actually cast in secret.
But these vestigial laws meant to purify 19th-century elections may be ill equipped for our hyperpartisan modern elections
If voters come to the polls wearing symbols like the Gadsden “Don’t Tread on Me” flag that has evolved into an anti-government symbol, a rainbow pin associated with gay pride, or even a sticker from a spice company whose owner detests Trump, those symbols can take on a perceived political meaning. Under these laws, these people could be accused of illegally campaigning where people vote.
How can anti-electioneering laws keep politics out of the polling place when politics already suffuses so much of life? And in 2022, polling places for many may be the kitchen table or a ballot drop box. In that context, do these laws still have relevance?
Political reformers in the late 1880s saw elections as too closely tied to party machines and their Election Day carousing. Much of the reform around this time was focused on “cleaning up” politics and destroying the nefarious influence of party machines.
In fact, the current popular understanding of party machines as being universally corrupt and lowbrow might be because “good government” activists won, so they got to write the history
Yet now, these reforms meant to purify 19th-century elections may not have the effect the authors intended.
For example, a New Hampshire woman opted to vote topless in that state’s September 2020 primary after election officials told her that her anti-Trump T-shirt ran afoul of New Hampshire laws forbidding campaigning within a polling place.
In fact, 10 states currently have laws on the books regulating the kinds of clothing voters can wear to the polling place.
These laws may violate the U.S. Constitution’s First Amendment prohibition on limits to free speech, but not all have been tested in court. In the 2018 opinion Minnesota Voters Alliance v. Mansky, the Supreme Court ruled that the state’s laws to create an “orderly and controlled environment” around the polling place were overly vague.
According to the Minnesota opinion, “a rule whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot is not reasonable.”
Poll workers, then, do not need to keep abreast of what a black-and-yellow polo shirt means or which spice company has engaged in political advocacy.
‘Bad things happen in Philadelphia’
Even so, teasing out what constitutes a “political message” seems easy compared with teasing out what constitutes a “polling place” when so many voters will cast their ballots before Election Day.
In the Sept. 29, 2020, presidential debate, Trump warned that “bad things happen in Philadelphia.” Earlier that week, a paid Republican poll watcher in Philadelphia was denied entry into a building that was not a formal polling place. Instead, it was handling, among other things, voter registration and pickup and drop-off of mail-in ballots. The Trump campaign sued, but the state court rejected the campaign’s argument, explaining that watchers are allowed only at polling places on Election Day, not Board of Elections offices at other times.
If anything, though, concerns about voter intimidation are greater in 2022, largely because of reactions to baseless claims of voter fraud in the 2020 election. Efforts in Texas and other states to “clean up” purported voter fraud, some in response to the debunked film “2000 Mules,” may end up suppressing the vote in 2022.
Indeed, a Reuters/Ipsos poll recently found that 40 percentof respondents are worried about threats of violence or voter intimidation at polling places in 2022.
The unfounded claims of election fraud have spurred changes to election laws in many states. For example, Georgia’s new election law enables organized groups to challenge the eligibility of an unlimited number of voters, meaning that some early voters have turned up to vote, only to find they need to jump through more hoops to cast their ballots.
And in other cases, conspiracy theorists are taking matters into their own hands: Some voters in Arizona are reporting that monitors, including armed vigilantes in one case, are patrolling ballot drop boxes, possibly running afoul of federal voter intimidation laws.
How clean is too clean?
In her 2004 book “Diminished Democracy,” political scientist Theda Skocpol describes 19th-century reformers as working “for measures that would emphasize an unemotional, educational style of politics.”
Demanding the protection of the purity of the polling place and politics, Skocpol argues, “treats politics as if it were something dirty and implicitly holds up the ideal of an educated elite safely above and outside of politics.”
Certainly, few Americans would advocate allowing the country’s literary greats – or anyone else – to fall prey to roving political gangs. But determining how to protect the integrity of elections is difficult when elections are everywhere.
And it may not be as easy as relying on rules meant for a different time, a different means of voting and a different electorate.
Kristin Kanthak is an associate professor of political science at the University of Pittsburgh. She wrote this piece for The Conversation, where it first appeared.
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