Voter Intimidation and Discrimination in the 2016 Election:

Rhetoric and Reality

Adam Gitlin

Counsel, Brennan Center for Justice at New York University School of Law

Prepared for presentation at the IDC Conference on the US Presidential Election of 2016, January 2017. The author’s views are his own.

Abstract

Beginning in August of 2016, President-elect of the United States Donald Trump repeatedly claimed that the election would be “rigged” if he lost, and called for volunteers and law enforcement to come to the polls to “watch” the election. Using private citizens and law enforcement in such settings historically has led to illegal discrimination and intimidation. But Mr. Trump’s comments, coupled with aggressive lawsuits by Democratic Party lawyers to combat laws restricting voting rights, politicized the act of voting in a way rarely seen in America. What do the rhetoric and resulting behavior teach us about how we ought to treat voters? This paper offers a working definition of voter intimidation, reviews briefly the history of voter intimidation and discrimination at the polls in the United States, examines the immediate pre- and post-election results of certain 2016 efforts to politicize voting in America, and concludes with suggestions on how best to reduce the intimidation that can result from the politicization of the act of voting.

Introduction

Voter intimidation took center stage in the United States’ 2016 presidential election. As a candidate, Donald Trump warned of voter fraud, and encouraged his supporters to go to precincts other than their own to “watch” voters in “other areas,” a phrase many interpreted as dog-whistle politics (Anderson 2016). He also took a permissive attitude towards violence by his supporters against his detractors. This set the stage for possible intimidation and discrimination against voters in the lead-up to, and on, Election Day.

Intimidation of and discrimination against voters is hardly a new concept in the United

States. Indeed, as discussed below, it dates to before the Founding. Yet it has not until now received top billing in a modern presidential campaign. In the wake of Mr. Trump’s repeated remarks, Democrats filed several lawsuits to prevent intimidation, and news reports conveyed fears of widespread voter intimidation on Election Day. While intimidation may not have occurred at the scale suggested, there was intimidation and there are lessons to be drawn from the election on how the nation treats its voters.

This paper first discusses in broad terms the problem behind the research question, which may explain its lack of comprehensive study: assessing voter intimidation is difficult if we cannot agree on what intimidation is. After proposing a novel definition with a focus on subjective perceptions of intimidation, the paper discusses some salient historical examples of voter intimidation that confirm the importance of this subjective perspective. Next, the paper looks at the 2016 election, in which there was widespread media attention to, and concern about, voter intimidation, and squares that against what actually happened. The paper concludes with recommendations on how to limit intimidation.

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Defining Voter Intimidation

No comprehensive studies of voter intimidation exist, in all likelihood partly because there is no consensus on what counts as intimidation. The lack of a clear definition is not a merely theoretical concern; its practical consequence is under-enforcement of laws that proscribe intimidation, or at least confusion on Election Day, when many of those in charge of elections or deployed to observe them may have conflicting impressions of what the law allows (Hayward

2007).

One study, by the U.S. Election Assistance Commission, which is responsible for developing standards for election administration in the United States, reports a telling divide in views:

Interviewees differed on what they believe constitutes actionable voter intimidation. Law enforcement and prosecutorial agencies tend to look to the criminal definitions of voter intimidation, which generally require some threat of physical or financial harm. On the other hand, voter rights advocates tended to point to activities such as challenger laws, voter identification laws, polling place locations, and distribution of voting machines as activities that can constitute voter intimidation. (Election Assistance Commission 2006)

The quote is telling in part because of the context: The EAC is ostensibly bipartisan and independent. But multiple internal government investigations from the mid-2000s showed that at the time the study quoted was written, voting-rights enforcement at the Department of Justice was heavily politicized, with allegations that one political appointee went so far as to pressure the EAC not to release this report in its original state (Election Assistance Commission, Office of

Inspector General 2008). Moreover, several current “voting rights advocates” interviewed for the report were in fact former enforcement officials. Thus, the purported dichotomy, with two groups having different perspectives, may obscure more nuanced views. Moreover, the study’s list of

3 consulted experts indicates its authors did not even speak with First Amendment scholars, who might also have cabined “intimidation” with rules on permissible electioneering, or Second

Amendment advocates, who might have urged some accommodation of right-to-carry gun laws in spite of slight voter discomfort.

Even if the authors had cast a wider net, the variation in viewpoints is understandable, because the focus is primarily legalistic. Some focus on requirements of acts like violence, which other laws already prohibit. Others point to legislatively enacted voting restrictions, which may be anti-voter on their own merits but in many cases would be better characterized as the result of policy disagreements. Neither approach accurately reflects the underlying norm.

What drives the proscription of voter intimidation is the notion that the exercise of the right to vote should be, from the perspective of the voter, unfettered—lines should be short, the process should make sense, and there should be no outside impediment. This is why in almost all voter-intimidation statutes, state and federal, liability turns on whether the conduct threatens or coerces a voter in such a way that “interferes” with voting (Weiser and Gitlin 2016). These statutes implicitly recognize that voting often derives not only (or even necessarily mostly) from calm rational thought, but from “hot cognition”—increasingly, we recognize that voting turns on feelings (Lodge and Taber 2013, Pew Research Center 2016b). Intimidation and discrimination create roadblocks to an activity intended to be swift and simple, regardless of how much deliberation preceded exercise of the voter’s rights.

Viewing aspects of voting as turning on feelings is consistent with contemporary efforts to reconceptualize what motivates voters. For example, recent research on why people vote has attempted to harness the teachings of field experiments in voter-mobilization methods, where

4 more personal communication methods (such as in-person canvassing) have been substantially more successful empirically than less personal methods (such as phone-banking or direct mail)

(Rogers et al. 2012). One posited explanation for this difference is that greater social connection leads to greater empathy and more socially desirable behavior. These phenomena are based not on the appeal of particular policy statements, but on how voters subjectively feel about the act of voting. If this is true during a political campaign, it must be even truer at the moment of voting, when time for deliberation is shorter and external stimuli are greater, and where most reported voter intimidation occurs.

These observations counsel a subjective view of voter intimidation—one in which a voter is intimidated if the voter feels that the conduct in question makes the voter less likely to vote for fear of retaliation by private or government actors for exercising the right to vote. That retaliation can take the form of physical abuse, threats of physical abuse, confinement (especially in the case of arrest), or strong abusive language.

A working definition of voter intimidation should include the prospect of the concreteness of retaliation in light of the subjective nature of the problem. Doing so is also consistent with federal prosecutorial standards for voter intimidation offenses: “The goal of voter intimidation … is to deter or influence voting activity through threats to deprive voters of something they already have, such as jobs, government benefits, or, in extreme cases, their personal safety…. Intimidation … is amorphous and largely subjective in nature….” (Donsanto and Simmons 2007). A subjective standard may be broader than an objective one, which would attempt a one-size-fits-all approach of what reasonable people might find intimidating, but is consistent with Congress’ intention that federal anti-intimidation law be interpreted broadly

(Cady and Glazer 2015).

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The subjective approach also has several advantages from the perspective of judicial administrability. First, as with the expression of other fundamental rights, such as the right to privacy, the right to cast a vote unimpeded is necessarily somewhat nebulous, and it may be more intuitive first to ascertain how the voter perceives the facts, and then consider how the rights of others should be limited in recognition of the primacy of how voters feel in the exercise of the franchise.

Second, increased focus on the voter avoids having the analysis turn as much on establishing intent, a difficulty in many intimidation cases. The courts have addressed the problem of showing scienter by giving greater weight to circumstantial evidence of intimidation, but this practice creates problems of its own (Swirsky 2002).

Third, a subjective standard reduces the weight that should be assigned to the nexus between the act of intimidation and voting (Stringer 2008). This is another problem that courts have dealt with inadequately, such as in United States v. Harvey, where a court found an insufficiently direct threat in the eviction, employment termination, and other retaliation against

African Americans who had just registered to vote.

The danger with all subjective legal standards is over-enforcement, because a voter’s feelings are hard to second-guess. Some types of voter deception—such as, say, automated phone calls misleading voters about the date of the election, or internet materials providing false information about the manner of voting (Rustin-Paschal 2011)—may be dealt with better under common-law fraud rules or, as some have suggested, more targeted legislation (Daniels 2010).

But for most other forms of intimidation, the better response to the over-enforcement concern, rather than reverting to an objective standard, is to recognize that at a certain point the

6 rights of others trump a particular voter’s feeling of intimidation (Leipold 1998). Where that tipping point is set will depend on the factual circumstances, but some examples below are instructive on where the rights of others must yield to a voter’s right to cast a ballot without interference.

Voter Intimidation: A Brief History

United States history is unfortunately replete with examples that have generated widespread agreement that whatever other rights the Constitution guarantees, it does not permit blatant efforts to deprive others of the franchise. Reviewing these examples under a subjective standard, however, reveals their overarching commonalities as forms of intimidation.

Voter intimidation was at its worst after the Civil War, used as a means of suppressing political power among African Americans (Logan 1954), but it is a practice older than the United

States. In the Colonial Era, when it was understood that only landed white men could vote in most of the colonies, intimidation of voters was nevertheless rampant (Campbell 2006). For example, in 1736, a full four decades before the American Revolution, a candidate who lost called in loans from men he knew had not supported him; many lost their property and were even sent to debtor’s prisons. These voters clearly felt intimidated, even after the election, such that the pre-election causal nexus often required under current law does not reflect the reality of the intimidation. And of course, no history of American electoral shenanigans would be complete without a mention of New York’s Tammany Hall political machine, which for years employed

“thugs” to violently prevent voters from casting ballots. There can be no question that outright violence is intimidating, and no First Amendment protections apply to it.

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The last century and half, however, has seen voter intimidation largely directed at racial minorities, and African Americans in particular, at times with direct involvement of law enforcement. Eric Foner’s indispensable tome on Reconstruction recounts how, for example, in

1868, just after the Civil War, “[i]n the southwest Georgia village of Camilla, 400 armed whites, led by the local sheriff, opened fire on a black election parade, and then scoured the countryside for those who had fled, eventually killing and wounding more than a score of blacks” (Foner

2002). After its establishment in 1870, much of the early workload of the Department of Justice involved protecting African Americans from violence, much of it connected to voter intimidation.

Indeed, with every wave of African American empowerment, voter intimidation has reared its ugly head. The legislative history of the Voting Rights Act of 1965 reveals Congress’ recognition that the exercise of voting rights by African Americans necessitated greater protections against voter intimidation than had existed to date, and which Congress provided in the form of Section 11(b) of that Act (Cady and Glazer 2015).

But violence, as we have said, needs no subjective inquiry, and subtler forms of intimidation have also inhibited political participation. In 1934, for example, when celebrated muckraker and novelist Upton Sinclair ran for (and won) the Democratic party’s nomination for governor of California, anti-socialist forces attempted systematic challenges to his supporters’ eligibility on Election Day. The California Supreme Court identified this conduct as a baseless intimidation tactic. And women have been intimidated at the polls since being granted the franchise, with reports, for example, that in one town in New York every woman who tried to vote in the 1918 election—the first in which women had the franchise—faced a challenge at the

8 polls (New York Times 1918). Blanket challenges, as scores of interviews in these cases and others confirm, have the potential to make voters feel intimidated.

Coordinated and overt voter intimidation may seem less flagrant in the modern era, but now arises more often in the form of so-called “ballot security operations” (Weiser and

Agraharkar 2012). These are coordinated efforts ostensibly aimed at preventing voter fraud, but that have been accused of being little more than pretext for discouraging voting through intimidation.

Berry (1996) and others have documented some of the most striking examples of coordinated ballot-security operations, such as the 1981 Republican National Committee operation in New Jersey. During that year’s gubernatorial campaign, in the name of ensuring the election’s integrity and preventing voter fraud, the RNC hired a “Ballot Security Task Force” to challenge voters’ eligibility in areas that were predominantly populated by African American and

Latino voters. This “Task Force” also deployed off-duty law enforcement officers to patrol racially targeted precincts, carrying firearms, and stopping and asking questions of voters while at polling places. As with most ballot-security operations, the evidence of fraud to justify the conduct was practically nonexistent. A court has continued to extend the resulting consent decree, which limits RNC Election Day activities, in response to repeated showings that it has violated the decree through ballot-security operations that are discriminatory and intimidating

(Weiser and Gitlin 2016).

More recently, the United States v. Nguyen case chronicles how in 2006, in a California congressional election, a professional mailing service connected to a candidate sent letters to roughly 14,000 newly registered voters with Hispanic surnames. The letters advised them in

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Spanish that their personal information would be collected by a newly implemented government computer system, and that organizations that were “against immigration” might request information from this system.

And in 2007, the Department of Justice took to trial an intimidation case on behalf of white voters against an African American, Democratic county official in Mississippi. The official, Ike Brown, had planned to use a list of only white voters to challenge their eligibility in a party primary. The court ruled against the government in United States v. Brown. [494 F. Supp.

2d 440 (S.D. Miss. 2007)]. Notably, on appeal the Fifth Circuit Court of Appeals made special mention of the fact that, “[a]lthough no challenges were in fact brought, testimony revealed the effects of this list: one voter was so intimidated that she did not vote; another was intimidated to the point that she did not feel she could approach the polls alone.” [561 F.3d 420 2009]. This explicit focus on feelings illustrates courts’ willingness to discuss potential intimidation in subjective terms, even in a case that, because it deviated from the Department of Justice’s traditional focus on protecting the rights of racial-minority voters, was quite controversial.

In sum, the United States has a long history of voter intimidation, and one in which discrimination on the basis of race and other legally protected characteristics has been an integral part. This connection also militates in favor of a subjective standard in a litigation context, as it may encourage empathy, whether or not a trier of fact shares the characteristics of the person claiming intimidation.

What We Learned in 2016

Intimidation in the 2016 election reflected the historic trend toward less obviously invidious collective intimidation, but also reflected some of the spirit of the campaign, which did

10 not specifically encourage collective action at the polls, and galvanized voters who recently had not been significantly politically involved.

The Campaign Setting

One 2016 factor was clearly out of the historical norm: In the lead-up to Election Day, one presidential candidate set a tone of suspicion around voter fraud and outright encouragement of violent. Donald Trump decried a “rigged” system—with the phrase seeming to encompass not only the electoral process but government generally. He urged voters to go and “watch” on

Election Day in “other areas” besides their own precincts, and encouraged law enforcement to patrol the polls as well. He offered these lines most often in Pennsylvania, inspiring local politicians to try to pass legislation that would amend Pennsylvania’s poll-watcher law, which forbade poll watchers from serving outside their home county. When that failed, politicians sued to have the poll-watching restriction declared unconstitutional (Weigel 2016). Mr. Trump also used rallies to encourage violence against detractors, promising to pay supporters’ legal bills

(Howell 2016). On his recent victory tour he even acknowledged his supporters were “vicious, violent” (Beckett 2016). But interestingly, in none of these situations did he encourage coordinated action.

This combination of encouraged Election Day vigilance and permissive attitude toward violence without any particular organizing or training mandate, let alone a particular focus

(beyond the phrase “other areas”) may have provided some Trump supporters with a greater feeling of justification in intimidating not just specific voters, but non-Trump supporters as a group. This created a space for voter intimidation along multiple vectors. Voting scholar Pamela

Karlan (1993) has characterized voting as having both group and individual components. Like

11 the act it targets, intimidation can be multifaceted. It can be based on an assumption regarding the aggregate preferences of a group, directed at a particular individual making a declaratory act by participating in an election, or posed as a challenge toward a citizenry’s ongoing dialogue with government (a direct response to the “rigged” narrative).

The election also came at the tail end of a campaign that saw increased interest in the election and mobilization of voters who were less connected to organized politics. These voters, particularly rural voters (Evich 2016), were becoming more interested at the same time that there has been a general decline in trust in American institutions of government, and a majority of

Americans viewed Trump as having little or no respect for the “nation’s democratic institutions and traditions” (Pew Research Center 2016a). This may explain some reports of intimidation by individuals at the polls, some of it quite abusive, without connection to a broader, organized effort to intimidate voters; they became involved, in an irreverent way, without needing organization to facilitate their behavior.

Coordinated Action

Coordinated efforts of voter intimidation occurred in pockets, but the most publicized effort may have been the “Stop the Steal” organization run by Trump advisor Roger Stone. This organization’s stated plans were to use exit polling to ensure detection of any election fraud. But the organization targeted many cities that had demonstrated Democratic party leanings, rather than bellwether areas, as exit pollsters traditionally have (Kenski and Dreyer 1977). On a conference call the night before the election, Stop the Steal organizers emphasized that they did not want volunteers intimidating voters, in part because doing so could taint their results.

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Nevertheless, Democrats sued to prevent Stop the Steal from carrying out its operations in several states. The suits failed in their primary objective, as courts found insufficient evidence of planned intimidation to enjoin Stop the Steal’s efforts. This may well have been the correct outcome: Democrats’ claims were speculative in many respects, and the legal complaints filed were essentially identical, in some instances without specifics that would warrant judicial intervention in the particular jurisdiction.

But the lawsuits did serve one useful purpose: They required Democrats and Stop the

Steal to articulate, and courts to analyze, what constitutes voter intimidation. Stop the Steal ultimately instructed its volunteers not to photograph voters at polling places (even though some states permit it), display badges identifying their political affiliation (even though most states permit so-called “passive” electioneering close to or even inside the polls), or interact with voters. Democrats requested courts to enjoin Stop the Steal representatives from monitoring polling places outside of normal poll watcher duties, loitering within 10 feet of polling places, or verbally harassing or photographing voters. Even the Supreme Court weighed in, sotto voce: while denying a last-minute request for intervention by Democrats, Justice Ruth Bader Ginsburg noted that state law already prohibits voter intimidation.

More explicit guidance on intimidation came from several states. At least four issued entirely new guidance specific to this election. Pennsylvania’s Secretary of State published a

“non-exhaustive list” of prohibited conduct, including “aggressive behavior inside or outside the polling place,” “[o]stentatious showing of weapons,” and “[u]sing raised voices, insulting offensive or threatening language, or making taunting chants inside the polling place.”

(Pennsylvania Department of State 2016). However, all of this guidance came no earlier than

October, and much of it was not explicitly reviewed in poll worker trainings.

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These actions not only put would-be intimidators on notice, especially those who would be coordinating their actions and perhaps likelier to be on the lookout for state guidance, but also increased common understanding of what sorts of behavior was outside acceptable bounds.

Reported Intimidation

The 2016 election saw more reported events, often with a discriminatory component, than the 2012 election. By one estimate there was as much as a fivefold increase in the number of incidents reported, in three times as many states (Gitlin 2017). The nonpartisan Election

Protection hotline, the largest operation of its kind, received over 4,000 calls on Election Day complaining of voter intimidation and vote suppression in the first few hours of voting, more than half of them from Pennsylvania (Neuhauser 2016). The author of this paper supervised the

Election Protection call center receiving calls from Pennsylvania, and can attest to having reviewed numerous complaints of private citizens and election officials alike making voters uncomfortable through words or deeds.

While there were fewer instances of reported intimidation than many news outlets predicted, the increase may have reflected the rhetoric of the campaign—with greater suspicion of others, and greater acceptance of violence, by individual voters. Among other troubling events:

• A black church in Mississippi was found burned, with the phrase “Vote Trump” painted on its side (Green 2016b). • In one Tennessee county, African American voters faced long lines and claimed to feel harassed by questions regarding their voter ID and residency—questions that, according to reports, were not posed to white voters. (Sher 2016). • Similarly, in Michigan, two women wearing hijabs were pulled out of line and questioned by someone who was not a poll worker. (Damron 2016).

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• In Nevada, there were reports of a partisan standing outside an early vote location harassing any voter who admitted not planning to vote for the partisan’s preferred candidate. (Green 2016a). • Outside a Texas polling place, police questioned but ultimately released a man with a gun who was sitting next to a sign that read “FAGGOTS VOTE DEMOCRAT.” (Kircher 2016).

All of these events, subject to further factual investigation, could have generated subjective feelings of intimidation.

The intimidation seen in the 2016 election also highlights the importance of recognizing where other rights must yield to voters’ feeling safe in casting their ballots. For example, in

Loudoun County, Virginia, a man stood outside an early-voting location with a gun, encouraging voters to cast their ballots for Trump. When a voter complained, a local election official explained there was nothing he could do, because the man was outside the state-mandated buffer zone, which prohibits electioneering within 40 feet of the polls. But the problem was not an electioneering violation; the problem was squaring voter intimidation with gun-carrying rights.

In such a situation, a voter may understandably feel subjective intimidation, to which Second

Amendment rights likely must yield because of the voting context.

Yet why did we see less overall intimidation than media reports might have led us to expect? Certainly, there is a pecuniary incentive for the press to sensationalize. Also, the state- issued guidance on intimidation and polling-place conduct may have worked. A less obvious reason may be that when voters arrived at their precincts, they did not see the fraud they feared, and therefore felt no need to act. This would be consistent with survey findings that voters are least concerned with the integrity of voting at the most local levels—it is the national vote that most evokes their concerns about fraud (Sances and Stewart III 2015).

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That actual voter intimidation did not occur at the levels expected does not mean the specter of voter intimidation had no effect. Some voters may not have voted for fear of the hassle associated with intimidation—that was certainly a motivating factor for abstention from the polls by African Americans for years after the Civil War (Guinier 1998). And even if they were not deterred, voters were politicized through intimidation rhetoric, whether it came in the form of rallies held by the president-elect, lawsuits brought by Democratic operatives, or the media.

That, for many, may have been one in a long line of actions exacerbating their distaste for politics, extending that negative association to voting.

Conclusions and Recommendations

Rhetoric and legal actions may not have created massive amounts of voter intimidation in the 2016 election, but they nevertheless offer lessons. Most broadly, as we are potentially at the precipice of an era in which coordinated voter intimidation will be more subtle, and more voter- intimidation events are perpetrated by individuals acting alone, potentially egged on by politicians, all those involved in the electoral process must be prepared to think differently about how they treat voters.

First, voter intimidation requires a clear definition to create norms against it and to encourage protection of voters, but actual findings of intimidation should be based on subjective inquiries. Clear rules are essential because otherwise a state risks a host of election-day problems with non-specialists interpreting for themselves what counts as intimidation, and subjective inquiries reflect the realities of voting, enhance administrability, and increase the probability of just outcomes.

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Second, states and voter-protection groups must do their part and educate voters, volunteers, and poll workers on the civics underlying voting and the dangers of intimidation.

They must take these actions earlier in the elections process than many did in 2016, and ensure they are taking into account technological changes that older laws may not explicitly cover—for example, with the advent of cameras in smartphones, the importance of preventing intimidation by photography of voters has only grown. On election-day, election officials must enforce electioneering restrictions vigilantly (Woodruff II 2011).

Third, politicians should be careful in how they treat voters. Bluster on the stump is par for the course in American politics, but incitement to violence has long been recognized as beyond the bounds of the First Amendment, and wittingly or not, such rhetoric in combination with fomenting fears of voter fraud can encourage intimidating behavior. Lawsuits with limited factual bases also risk turning voters into game-pieces in the national discourse on voting, and may even lead to a “crying wolf” result, with less protection provided for voters. Together they risk debasing long-term civic engagement as sullied by politics. The better course for political actors may be to refrain from this kind of behavior, to encourage order at the polls, and to focus instead on increasing turnout.

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