Revelations regarding Donald Trump and sexual assault, and his Charles Foster Kane-style threat to jail Hillary Clinton, have largely monopolized public horror over the past week. And for good reason. But no less deserving of attention is Trump’s verbal war on minority voters, which could have serious consequences on Election Day. These attacks threaten the stability of the American system—and also potentially expose his supporters and his party to civil lawsuits and even criminal prosecution.
On Monday, Trump warned supporters in Ambridge, Pennsylvania—whose population is 75 percent white—that it is “so important that you get out and vote. So important that you watch other communities, because we don't want this election stolen from us.” Last week, he told a rally in Manheim, Pennsylvania, which is 95 percent white: “Go and vote and then go check out areas because a lot of bad things happen, and we don't want to lose for that reason." The night before, in Novi, Michigan—75 percent white—he said: “Go to your place and vote, and then go pick some other place, and go sit there with your friends and make sure it's on the up-and-up.”
Trump is essentially asking his followers to get together and harass voters in the guise of checking for voter fraud. (Conservatives for years have insisted that “voter impersonation”—that is, in-person voting by people claiming to be other voters—is a danger to democracy. Every serious study confirms that impersonation is virtually unknown anywhere in the country.)
And it’s not just any voter fraud. In a subsequent radio interview, he clarified that “other communities” in his Ambridge talk referred to Philadelphia, a majority-minority city. That description wasn’t really necessary, though: Anyone who doesn’t know what that phrase—or “certain areas” or “some other place”—really means has slept through all of American history. In Pennsylvania and Michigan, Trump’s supporters may very well believe they can now besiege, clog, and disrupt minority-area polls for one day, and thus shift the states’ electors to Trump.
These threats come at a fraught moment for voting rights. November 8 will be—as Ari Berman, author of Give Us the Ballot: The Modern Struggle for Voting Rights in America, has pointed out—the first presidential election held since the conservative majority on the Supreme Court gutted the enforcement provisions of the Voting Rights Act. Because of the court’s decision, the U.S. Department of Justice has withdrawn federal election monitors—which it had planned to deploy in 11 states—from all but a few areas. It’s also the first one since the rash of post-2010 Republican-sponsored “voter ID” laws passed; these measures are bound to—indeed, are seemingly designed to—cause confusion, conflict, and litigation under the best of circumstances.
But Trump’s attacks aren’t just threatening to minority voters. Or to the integrity of the political system, which should protect the franchise of all American voters. If put into practice, his calls for election “monitoring” could also open his supporters up to legal action. This election could prove to be the perfect test case for voter-intimidation lawsuits.
Let’s be clear: Every campaign uses volunteer poll watchers, and has a legal right to do so. “It’s very common to have people at the polls,” election-law guru Rick Hasen told The Washington Post. “What’s different is that he is couching it in an incendiary way by saying ‘Crooked Hillary’ wants to steal the election. That seems to be an invitation to go and make trouble.” A poll watcher—I’ve been one—keeps track of who has voted, relays the names to campaign headquarters, and may sometimes report irregularities to election officials or party lawyers. A traditional poll watcher, however, does not directly challenge voters—especially not based on skin color. That is against the law.
Also unacceptable is posing as law-enforcement officers and demanding voters’ IDs, sending out intimidating mailings to minority voters, posting misleading or intimidating signs, or standing at the polls to challenge minority voters’ rights to a ballot. These aren’t hypothetical tactics: Over the past 30 years, the Republican National Committee has been linked to all of these unsavory practices. As part of a long-running lawsuit by the Democratic National Committee, the RNC signed a binding “consent decree” in 1982 promising to stop them. Before the 2012 election, the RNC went to court and claimed that because the United States has an African American president, minority voter suppression is no longer a problem. They also argued that laws like the Help America Vote Act, which is designed to streamline registration and voting, make voter fraud more likely, and thus their so-called “ballot security” programs were needed. The Third Circuit held, however, that the RNC is still bound by its settlement agreement. If the RNC does not violate the agreement this year, it will expire in 2017. If it does, it will be extended for another eight years.
Thus, Trump’s voter-fraud alarms could put his party at risk. It’s no secret that, in many places, the Trump campaign is relying on the national committee’s ground operations to get out the vote. So if groups or individuals affiliated with the campaign support voter-intimidation efforts, they may expose the RNC to new lawsuits, further litigation, and years of court supervision.
Still, it really doesn’t matter whether voter intimidation is performed by campaign staffers or self-selected polling-place police. Official or unofficial intimidation can be a federal crime. Federal prosecutors may not choose to indict; but if groups, even private groups, organize—formally or informally—to obstruct minority voters, they may also be exposed to civil suits by citizens who are intimidated or want to prevent intimidation.
Three federal civil statutes forbid voter intimidation: Section 3 of the so-called Ku Klux Klan Act, which not only prohibits conspiracies to deny voting rights, but also “go[ing] in disguise” to do that; Section 131(b) of the Civil Rights Act of 1957; and Section 11(b) of the Voting Rights Act of 1965. All three statutes above permit voters themselves to go to civil court to seek injunctions against individuals or groups engaging in, or preparing to engage in, intimidation. The KKK Act makes money damages available as well—and, financially as important, losing defendants may also be ordered to pay the plaintiffs’ legal fees.
These statutes, by and large, seem to have been underused. Recently, two young lawyers who worked on the DNC-RNC case have suggested publicly that the statutes should be read more broadly than they previously have been. In an article in the New York University Review of Law and Social Change, Ben Cady and Tom Glazer argued that “federal voter intimidation claims are potentially powerful tools” for individuals and groups who want to fight back. They urge a much more aggressive use of the intimidation statutes; their article is a how-to guide for litigators around the country who want to wheel out these laws as part of the voting wars. (Other scholars question whether the statutes go as far as the authors suggest.)
Wendy Weiser, director of the Democracy Program at the New York University Brennan Center for Justice, notes that voter intimidation lawsuits are often ineffective against present intimidation. The true utility of these statutes, she argues, may be in their use for prevention, not actual litigation. Thus, local civic and political groups have every right to contact their state and county election offices to remind them of their duty to keep the polls free of intimidation and racist disruption. Given the current state of the race, even partisan election officials might ask themselves how much legal risk they want to run on behalf of Donald Trump.
If the RNC doesn’t actively work to stop this thuggery in November, it would be fitting for the court to extend the consent decree for eight years. As for the village vigilantes organizing to go to “certain areas” on Trump’s behalf, I would love to see them hauled into court to explain their plans—and possibly socked with damages and legal fees.
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