Voter Intimidation and Discrimination in the 2016 Election: Rhetoric and Reality Adam Gitlin Counsel, Brennan Center for Justice

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. 2 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). 5 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

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