What poll watchers actually do, and Trump’s troubling rhetoric about them, explained

Some concerns around poll watching don’t have to do with the people designated to be inside voting sites.

“I’m urging my supporters to go into the polls and watch very carefully because that’s what has to happen,” President Donald Trump said during the first presidential debate last month. “I am urging them to do it.”

To facilitate that, the Trump campaign has launched Army for Trump, an effort to mobilize tens of thousands of volunteers for get-out-the-vote efforts, including poll watching. A Trump campaign spokesperson told Vox that it hopes to fill 40,000 poll-watching shifts, and expects to exceed their goal of recruiting 50,000 volunteer poll watchers.

This isn’t unique to the Trump campaign; the Biden campaign is also recruiting tens of thousands of poll observers.

Laws governing what, exactly, observers can do at polling stations, and who can serve as one, vary by state. Unlike poll workers, who assist and engage with voters, partisan poll watchers are mostly just that — the eyes and ears of the political parties, looking for or documenting potential irregularities that may affect the outcome for their party, candidate, or ballot initiative.

Poll watching is part of the democratic process, but it has gotten even more attention in 2020 because of the rhetoric around the election. The president has repeatedly made unfounded allegations of widespread voter fraud. Trump’s ire is mostly directed toward mail-in voting, but his claims that the election may be stolen from him and calls for people to keep an eye on polls (if not exactly new) have whipped up political tensions even more and increased fears of possible voter intimidation at the polls.

Designated poll watchers — which, again, both parties have — usually have to be officially selected by a party or candidate, and often have to be registered voters, or even registered in the voting precinct they’re assigned to watch. In many cases, they are restricted from interacting with voters, but depending on the jurisdiction, they can potentially challenge the eligibility of other voters. Those kinds of objections can slow down the voting process for everyone, when some voters already face long waits at the polls.

But Trump’s rhetoric has raised concerns that partisan poll-watching activities will extend beyond these legitimate, designated poll watchers, with private citizens or even armed militia groups taking it upon themselves to police the polls.

Voter intimidation is illegal, and states have strict buffer zones around voting sites. But, as Nicolas Riley, senior counsel at the Institute for Constitutional Advocacy and Protection (ICAP) at Georgetown University Law School, told me, “Simply by virtue of the fact that the more people you put in and around the polls on Election Day, the more likely you are to have chaos and other types of shenanigans that lead to all kinds of problems.”

More than 50 million people have already cast their ballots in early voting for the 2020 election. There have been a few incidents of possible voter intimidation, most notably a report in the New York Times that said the Trump campaign was videotaping voters bringing ballots to drop-off boxes. But for the most part, Americans are successfully casting their ballots, and that’s a reassuring sign ahead of Election Day.

But there’s still a chance we could see some, well, “shenanigans.” So with that, it’s worth it to understand what poll watchers are — and aren’t — legally allowed to do. Here’s everything you need to know.

Why America even has poll watchers

Poll watchers, in the best of circumstances, are there to guarantee openness and transparency in the democratic process.

In America’s early days, elections were kind of free-for-alls, sometimes literally drunken parties, where people got together and cast their ballots in public. It was all done out in the open, which meant everyone could see or hear who their fellow citizens (then, white men) voted for. Even when paper ballots came into fashion, political parties handed them out — basically, you take the party ballot you want, put it in their box, and that was that.

But that began to change in America in the decades after the Civil War, when voting became much more professionalized. A big part of this was the adoption, in the 1880s and 1890s, of what’s known as the “Australian ballot” — or secrecy ballot — which basically scrapped the old system for something similar to what voters are used to today.

Instead of political parties running the show, state officials designate polling areas and distribute ballots with all the candidates. And, most importantly, the voter marks it in secret.

This is obviously the condensed version, but as experts told me, this is where you start to see all the different kinds of rules governing polling stations, including who can be there and who can’t. So the role of poll watchers evolved from here. Before voter registration systems were adopted, they might ID voters and, after, check their names on a list.

There was also a dark side to this: As Riley told me, some of these laws that allow voters to challenge the voting eligibility of fellow citizens came about as a result of Jim Crow-era policies, and were specifically designed to target Black voters.

But broadly, when it came to partisan poll watchers, the thinking behind it was largely that parties or candidates wanted a guarantee against any funny business that might disadvantage their candidate. Having representatives for different parties also helped ensure legitimacy — if everyone agrees on the outcome, and any potential disputes are resolved, well, that bolsters faith in electoral outcomes.

“Even though we take for granted that our elections are run according to the rules,” Larry Garber, an international elections expert and consultant at the Carter Center, told me, “I think there is still lingering concern that if no one’s watching, someone can stuff ballots or prevent people from voting or whatever. And therefore, you need to have your representatives present to prevent that kind of chicanery.”

Beyond possible chicanery, problems do happen at voting sites.

Maybe the printed ballots misspell the name of a candidate; if voters are confused, the campaign in question may want to know that. Maybe a polling place runs out of ballots for a few hours; poll watchers can document how long that lasted and how many voters might have been turned away. And they can communicate with party officials and campaign lawyers. For example, maybe the polling station was out of ballots long enough that parties might sue to keep the polling place open a little later.

Or, say some votes are discarded because a voting machine can’t read them; poll watchers might be able to note that, actually, you can clearly see what the voter marked and thus the ballots should be counted. Or if a candidate loses in a close race, they can potentially use poll watchers’ testimonies for grounds to challenge the results, and maybe demand a recount.

You get the picture. Political campaigns and parties can’t keep track of every voting precinct, so partisan poll watchers are kind of like an on-the-ground liaison for anything that might go awry.

Who is allowed to watch the polls, and what they are (and aren’t) allowed to do

Poll watchers can be nonpartisan, such as members of civic groups, or partisan. Partisan poll watchers usually represent political parties, candidates, or even ballot initiatives. Some states also allow for private citizens to observe polling places and other election processes such as testing voting equipment and examining absentee ballots. (The US allows for international poll observers, too.)

Each state has its own laws governing who can and cannot be at polling stations. When it comes to partisan poll observers, states have rules about who can be appointed. For example, many require poll watchers to be registered voters themselves, sometimes in the jurisdiction where they’re serving, or at least in the state.

Some states limit the number of partisan poll watchers, such as restricting them to one observer per party/candidate, per precinct. States usually require that observers clearly identify themselves and whom they’re representing, and no campaign swag is allowed.

States also have guidelines for which parts of the election process watchers can observe and exactly what poll watchers can do during voting. Some states may allow poll observers to watch over poll workers’ shoulders as they check IDs; others may designate locations for observers to stand close by but out of the way of the action.

Most of the time, poll watchers are not permitted to interact directly with voters, or even election officials, unless they have a specific complaint or challenge — and states all have rules on how any challenge can be made.

Poll watchers, of course, can never follow someone into a voting booth. Some states bar observers from taking photos or videos. This year, some states have also added guidelines related to the pandemic, such as asking poll watchers to wear face masks or stand 6 feet away from others.

Some states also allow private citizens to observe stages of the voting process, sometimes under similar guidelines as partisan observers, other times with slightly different restrictions. In many states, both designated poll watchers and regular citizens can challenge the eligibility of voters.

States have laws governing these types of challenges. For example, sometimes the challenger also has to be a registered voter in the precinct, or submit their request in writing. But you get the gist: different states, different rules.

Overzealous poll watchers are a concern, but probably not a huge one

There are downsides to this kind of voting transparency. Overzealous poll workers do have the potential to slow down the voting process at precincts if they’re being overly aggressive or, as is allowed in some states, challenging the eligibility of voters.

And in an election year where turnout is expected to be much higher than usual, and where polling places are seeing hours-long waits for early voting, this can just jam things up.

“You can’t object for bogus reasons, but it’s pretty easy to claim that you’re objecting for a legitimate reason, right?” Garber told me. “And that gums up the process, causes delays, creates lines, creates frustration, makes people feel like the process is somehow not working.”

Garber emphasized that polling officials who are running these sites have the power to intervene if a poll watcher is really overstepping their role or mounting frivolous challenges.

“State law varies across the country as to what level of proof the poll watcher would have to have in order to challenge the person who’s getting ready to cast their ballot,” Julie Houk, managing counsel of election protection at the Lawyers’ Committee for Civil Rights Under Law, told me. “Some states have criminal penalties associated with making invalid or intentionally false challenges to harass or intimidate voters. But, again, that depends on the state law.”

Such challenges can potentially disenfranchise individual voters. If, say, a voter waits in line for hours only to find out they’re being challenged, they may not be able to gather the evidence they need to refute the claims, which sometimes involves providing additional identification or witness testimony. The concern is that the voter may just give up, said Houk, though she pointed out that organizations like hers are there to intervene if that happens on Election Day, to protect voters’ rights.

Some voting rights groups are also concerned that partisan poll watchers could single out certain voters for additional scrutiny, something that could be intimidating for voters, especially if a poll watcher is singling out minorities or non-English-speaking voters as ineligible.

Vincent Hutchings, a political science and Afro-American and African studies professor at the University of Michigan, told me this is especially problematic given the geographic and racial divides between the parties. “In such a world where you can visually identify — typically — someone’s racial or ethnic background, and when there’s such a high correlation between race and ethnicity and partisanship, then that is a recipe for potential disaster,” he said.

But the biggest worries over poll watchers in 2020 have less to do with the legitimate ones dispatched to voting places by their party or candidate, and more to do with, well, everyone else.

Trump’s calls to watch the polls are what people are really worried about

In September, during early voting in Virginia, a group of Trump supporters stood outside a polling place in Fairfax, shouting “four more years” as voters entered the polling station.

The laws differ state by state, but all voting sites have buffer zones around them in which people who are not in line to actually vote aren’t allowed to stand. Beyond the buffer zone, however, people can more openly electioneer — wave a Trump flag, hand out pamphlets for a Democratic candidate, etc.

In Virginia, that buffer zone is 40 feet, meaning that

During the times the polls are open and ballots are being counted, it is unlawful for any person (i) to loiter or congregate within 40 feet of any entrance of any polling place; (ii) within such distance to give, tender, or exhibit any ballot, ticket, or other campaign material to any person or to solicit or in any manner attempt to influence any person in casting his vote; or (iii) to hinder or delay a qualified voter in entering or leaving a polling place.

Election officials said the Trump supporters in Fairfax were about 100 feet from the building, so outside the buffer zone. But officials still had to open up another portion of the building so voters could wait inside, just to prevent anyone from feeling as if they were being harassed.

To some, this incident looked like a potential first act in a tense and highly polarized election year, with a potential for a wave of private citizens intimidating voters at polling stations under the guise of poll watching.

Trump’s general reluctance to condemn white supremacy, as well as his comments that the far-right Proud Boys group should “stand back and stand by” on Election Day, has forced election officials and law enforcement to prepare for possible voter intimidation at the polls. (Trump later said he meant to say “stand down.”) And some militia groups, such as the Oath Keepers, have already said they will patrol polling sites on Election Day.

The fear over this “army” of poll watchers Trump is recruiting, then, might be that there will be a blurring of the lines for poll watchers, or that it might attract regular citizens or militia groups who feel called to patrol or police voting precincts for voter fraud, particularly in majority Black or brown or Democratic neighborhoods.

“And that’s the concern,” Houk told me, “where they’ve been sort of encouraged to go out and watch the polls but they don’t know what they’re watching for, because they don’t know what the law says.”

“There is a role for poll observers to observe what’s going on, and to make sure that elections are proceeding fairly,” Kathleen Roblez, a staff attorney at Forward Justice, a nonpartisan racial, social, and economic organization justice organization in the US South, told me.

“But,” she added, “I think that some of the concern of the real intimidation will come from people who are outside of the polling places, who have little bit more power and are less regulated.”

When it comes to carrying weapons, some states bar people from bringing firearms into polling stations, but it varies by state. However, it is always illegal for an individual to use a firearm to intimidate a voter.

“Even if one leaves aside the inflammatory rhetoric of the president — because, of course, it didn’t begin with him — this process of sending poll watchers, oftentimes to Democratic neighborhoods, which of course are minority neighborhoods, in many instances, is an opportunity to engage in some of the most egregious violations of people’s civil rights,” Hutchings said. “It leaves open the possibility that this could occur because indeed it has occurred before, and it’s occurred before in my lifetime, not 100 years ago.”

There are a few egregious examples in recent history, but maybe none more relevant to 2020 than what happened during a New Jersey gubernatorial race in 1981.

On Election Day, about 200 armed men, including many off-duty police, patrolled primarily minority and Democratic-voting neighborhoods like Newark and Trenton. They wore armbands and identified themselves as part of the “National Ballot Security Task Force”; some also wore Republican Party branding, according to news reports from the time. And they were the creation of, and very much linked to, the Republican Party.

“WARNING,” one of their posters read. “This area is being patrolled by the National Ballot Security Task Force. It is a crime to falsify a ballot or to violate election laws.” The posters reportedly offered rewards to people who turned in improperly registered voters.

In court documents, one of the plaintiffs, a Black woman from Trenton, said she had been asked to show her voter registration card and told by someone from the task force that she could not vote without it. The NBSTF also actively tried to drive voters from the polls, including, in one instance, chasing voters away from the polls in Newark.

That election was extraordinarily close. The Republican candidate, Thomas H. Kean, led his Democratic opponent, James Florio, by fewer than about 1,750 votes initially. A recount still put Kean in the lead, by fewer than 1,800 votes, and Florio conceded.

But even though Democrats didn’t challenge the final result, they ultimately did take Republicans, specifically the Republican Party in New Jersey and the Republican National Committee, to court for voter intimidation. Plus, before the actual intimidation at the polls, Republicans had been engaged in what’s known as “voter caging,” where they send mail to registered voters, keep track of what mail is undeliverable, and try to purge those voters from the rolls. Ahead of the 1981 election, they did this to thousands of voters in primarily Black and brown neighborhoods in New Jersey.

So civil rights activists helped gather testimony and affidavits about the NBSTF’s tactics, and the Democratic National Committee sued the GOP for voter intimidation and illegal harassment under the Voting Rights Act.

In 1982, the two sides settled, and the RNC entered into a consent decree that barred the committee from engaging in any ballot security measures that might deter qualified voters from voting.

In practice, this prevented the RNC from coordinating ballot security activities nationally; the consent decree could be enforced in court if any groups engaged in any such intimidation or harassment and the RNC was found to be behind it. It was extended in 1987 and again in 2009.

But at the start of 2018, the consent decree expired, despite Democrats’ attempts to extend it. Which means that, for the first time in decades, the RNC is not restrained by the limits of consent decree, including getting prior approval for any poll-watching activities.

“The expiration of the consent decree looms large in this election,” Angelo J. Genova, chair and managing partner of Genova Burns and one of the attorneys who represented Democrats in the litigation, told me.

The expiration of the decree meant that an incredibly powerful check on potential voter suppression was now gone. “For decades, the consent decree effectively checked the RNC and its agents from engaging in purported ballot security measures whose purpose or effect was to suppress minority voters from exercising their right to vote. This consent decree was made for this moment,” Genova said, “a moment one would think was long gone.”

For Republicans, though, the expiration meant they were finally back on equal footing with the Democrats, as they didn’t have to follow additional restrictions to their campaign activities and the RNC can coordinate nationally, something the consent decree really hindered. But as election expert Rick Hasen told NPR in 2018, there was a reason for the unequal footing. In recent years, Republicans, not Democrats, have a documented history of trying to make it harder for minority voters to vote.

Mark Krasovic, an expert in US and New Jersey history at Rutgers University, told me that beyond the threat of direct voter intimidation, the concern is that partisan election monitoring activities will be used to just slow down the process — “to gum up the works as much as you can” — and to delegitimize the electoral process.

“That was something that people were saying in ’81: It’s not necessarily that they turned people away, but they slowed things down, and people didn’t get to cast their votes,” he said. “And then just to delegitimize the entire process — to raise questions about it, to promote skepticism of the process.”

Despite concerns, voters should feel confident about going to the polls

Delegitimizing the voting process, as Krasovic said, is not a small thing. That’s partly why Trump’s rhetoric is so dangerous. It’s not just about rallying a few die-hards to the polls; it creates the specter of intimidation. If voters are nervous or fearful about voting, they may be dissuaded from doing so altogether. That, in itself, can suppress the vote.

There are very real concerns about what might happen outside polling stations, experts said, but it’s important to recognize that despite a few tense incidents so far in 2020, the worst-case predictions are not actually happening right now.

A Trump campaign spokesperson said its “poll watchers provide confidence in an election when they can say that all rules and laws were applied equally,” and added that they’re all trained in the proper conduct of a polling location or other election facility. And though not all states require trainings, the Trump campaign is providing training for everyone.

CNN reviewed 17 poll watcher training videos posted by the Trump campaign, and the instructions did not match the rhetoric of the president.

“Simply because someone has out-of-state plates or they don’t speak English, those are not reasons for a challenge,” the narrator says in the Colorado video, according to CNN. Another says to be nice to everyone, and makes clear the job isn’t to stop legitimate voters from voting. Although a video of a training in Nevada had a Trump campaign lawyer telling the group that the “the main goal is electing the boss,” he also said watchers shouldn’t interfere with voters, and should kick any issues up to the lawyers.

And in any election, there are going to be cadres of lawyers on the lookout for both sides. The Biden team is also recruiting poll watchers, and there will be tens of thousands of poll observers associated with the campaign deployed across the country, both as designated partisan poll watchers inside precincts and as volunteers outside the buffer zone, who can answer voter questions.

“We’re making sure that everybody that shows up and wants to cast their vote in person that’s eligible is able to do so, and that vote counts. We do that everywhere and anywhere we can,” Rachana Desai Martin, director of voter protection and senior counsel for the Biden campaign, told me.

In that sense, 2020 is just like any other election year. But, of course, it isn’t in a lot of ways — the biggest aberration of course being that one of the two candidates at the top of the ticket (along with many of his allies) is trying anything and everything in his power to undercut the voting process.

And, again, that includes rhetoric around poll watchers. In September, unauthorized poll watchers associated with the Trump campaign showed up at satellite offices in Philadelphia, where voters could register or drop off mail-in ballots. Election officials asked them to leave, because the satellite offices were not official polling locations but were just providing voter services.

But Trump allies, and the president, tried to gin up suspicions around the Philadelphia election officials asking the unauthorized poll watchers to leave.

Trump repeated that claim during his debate with Biden in September, saying “bad things happen in Philadelphia.” The Trump campaign also sued, but a state judge sided with the Philadelphia officials, and just this week, a higher court affirmed that ruling. But the damage was sort of done: Right-wing circles had picked up on this idea that somehow Trump campaign observers were being barred from election sites.

The poll watchers aren’t really the problem, then. It’s the misinformation and rhetoric around them. And that, more than anything, may be the most potent force in undermining the vote this year.

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