‘Fear is a driving factor in this election’: Election experts sound alarm on possible voter intimidation

Experts from the National Task Force on Election Crises are on high-alert as the possibility of voter intimidation poses an increasing threat through Election Day.

“We most certainly have been receiving an uptick in complaints regarding voter intimidation this season,” Kristen Clarke, president and executive director for the Lawyers’ Committee for Civil Rights Under Law, said.

From incidents at voting locations involving intimidating groups around the U.S., to police in North Carolina pepper spraying voting rights protesters, the task force said they are alarmed at the current conditions surrounding this election cycle.

“The images [of the incident in North Carolina] likened back to the days of Jim Crow,” Clarke said.

The National Task Force on Election Crises is a bipartisan group of experts from around the country dedicated to ensuring that this election is free and fair.

The task force has pointed to President Donald Trump as a possible motivating source for some of these groups, including right-wing domestic terror groups, engaging in voter intimidation.

“And some of these groups who have been in a call and response relationship with the president for the last three years, are talking about deploying to the polls to protect against voter fraud, protect against ballot counting fraud, and thereafter, to deploy on the streets even post election,” Mary McCord, legal director and visiting professor at Georgetown Law’s Institute for Constitutional Advocacy and Protection, said.

Despite their insistence of their own legitimacy, the formation of these groups is illegal, according to McCord.

“There is no authority under federal or state law for private groups of individuals to organize themselves while armed and self-deploy or self activate as a militia organization engaged in any type of armed projection of authority over other people,” McCord said. “They will often point to the terms ‘well-regulated militia’ in the Constitution as their authority. But historically, that term has always meant regulated by the state.”

Additionally, all 50 states prevent them in one way or another through their own constitutions and more than two dozen states have specific statutes prohibiting “paramilitary activity,” according to McCord. 

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“Many also explicitly criminalize private individuals from assuming the functions of law enforcement, as we often see these groups do in places like Kenosha and Albuquerque and Portland and Louisville, and elsewhere, often with tragic results,” McCord said.

Despite these very real causes for concern, the task force has cited two reasons for optimism.

“On the positive side, we’ve been spreading the word through fact sheets to state and local authorities, election officials, voting rights organizations, law enforcement, etc. explaining what the laws are in their states,” McCord said. 

Also, according to the task force, they have recently noticed some pushback within some militias about showing up at the polls and engaging in voter intimidation.

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Trump’s influence on the conditions in this election came up time and time again during the virtual press conference, especially during the topic of legitimate use of federal law enforcement. The task force used the opportunity to emphasize the boundaries that local and federal law enforcement must act within during an election.

“[The] National Guard is already being used for all sorts of unusual but legal activities this year. And it’s worth setting that stage,” Rachel Kleinfeld, senior fellow of the Democracy, Conflict, and Governance Program at the Carnegie Endowment for International Peace, said. “There are at least 10 states where [the] Guard has been used for cyber security, for working polling stations, directing traffic. Those are all extensions of COVID, except for cyber security.”

And while their behavior has been legitimate and ok thus far, according to Kleinfeld, the task force described the possibility of their presence escalating situations and unlawful scenarios in which their power could be abused by those in government.

“Seizing and destroying ballots by federal troops is not just illegitimate, it is a federal crime,” Liza Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice at New York University School of Law, said. “There’s some of the laws specifically relating to what troops can do and cannot do around the election, that prohibit not only military troops, but federal armed men of any kind from being present at places where elections are being held.”

In fact, neither federal troops nor the Department of Justice can seize ballots from state election officials, according to the task force.

Whether it’s voter intimidation from armed-militias or even law enforcement, the task force is incumbent on time to protect voters. Even so, “11th hour” issues on Election Day pose a serious problem.

“I don’t know what the remedy would be, if we’re not able to quickly resolve and troubleshoot intimidation efforts on Election Day,” Clarke said.

In preparation for a widespread amount of voter complaints on Nov. 3, the National Election Protection Program is well-equipped to deal with such matters.

“We’ve got 42,000 legal volunteers who will be operating via 30 command centers across the country, and we’re ready to go to court,” Clarke said.

The atmosphere regarding this election has even prompted the task force to address the press directly.

“Fear is a driving factor in this election.” Kleinfeld said.

Kleinfeld claims that the press will be used by groups to “suppress the vote” and the press has to do a better job of not taking “bait” in scaring voters away from the polls.

“The best way to do it is to always include the denominator,” Kleinfeld said. “Every horrible incident, no matter how horrible needs to be put in the context of the fact that we have 13,000 elections going on around the country, because of the number of municipalities. We have more than that number of polling stations.”

With that said, the task force feels as though it’s ready to handle what Election Day might bring.

“There has been, in this election, a tremendous amount of preparatory work ahead of time to make sure that the networks are built between community organizations on the ground and poll watchers and election officials and local law enforcement so that issues can be spotted right away and sort of routed into the place that makes the most sense to deal with those issues,” Goitein said.

Kenny Cooper is a Hearken Election SOS Fellow who is helping the Capital-Star cover the 2020 election. Follow him on Twitter @kenny_cooper_jr.