Go sit there with your friends

Talking Points Memo on Trump and voter intimidation.

Civil rights  groups are already gearing up for an especially tense Election Day. Meanwhile, the federal government has been hobbled by a 2013 Supreme Court ruling in its ability to monitor elections in places with histories of voter intimidation. Of particular concern are states with loose open carry laws, where already, some armed Trump supporters have shown an interest in making their presence known at voting sites.

“The idea that people would be standing outside the polls with guns, or even inside the polls with guns, clearly has the potential to turn people away. There’s a long history of this,” said Deuel Ross, an attorney for the NAACP Legal Defense Fund, which is very active in voting rights litigation.

And it’s what Trump actually wants to happen.

Trump has for months complained about the possibility of an election somehow “rigged” against him, but recently, the rhetoric has taken on a more ominous, and even racially-tinged tone, that specifically mentions voter fraud at the ballot box. Last week, he told a mostly white crowd in Ambridge, Pennsylvania, to “watch other communities, because we don’t want this election stolen from us.” He said at rally in Michigan late last month that his supporters, after they vote, should “pick some other place … and go sit there with your friends and make sure it’s on the up and up.”

He’s telling his fans to intimidate voters.

Bad times.

The Voting Rights Act includes a provision that prohibits any attempt to “intimidate, threaten, or coerce” a person trying to vote, and there’s a section of the federal criminal code banning voter intimidation as well. In theory, that could set up a confrontation between federal voter intimidation laws and state open-carry laws (federal law would generally trump state law). However, according to Kristen Clarke, the president and executive director of Lawyers’ Committee for Civil Rights Under Law, federal laws are rarely ever used to address voter intimidation claims.

“There’s not just much of a history of the federal government using them,” Clarke said, adding that her group, which monitors elections to ensure all eligible voters can cast a ballot, is more reliant on state and local systems to address instances of voter intimidation.

The Shelby ruling has made it harder for the Feds to watch out for voter intimidation.

The DOJ interpreted the ruling to have also curtailed its ability deploy election observers to the 11 states previously covered by preclearance. This election, the DOJ will only have its elections monitoring program set up in five states — Alabama, Alaska, California, Louisiana, and New York — where federal court decisions have authorized it do so, Reuters reported this summer.

“That safeguard of having specially-trained individuals on behalf of the federal government inside the polls won’t be in place in many communities this November, creating a potentially toxic and vulnerable situation for some voters,” Clarke said.

Because the five conservative justices were wrong that the safeguards aren’t needed any more. So wrong.

It’s worth noting that the Republican National Committee has been under a three-decade-old consent decree — that the Supreme Court in 2013 refused to lift — barring it from engaging in any sort of “ballot security” efforts targeting minorities. The decree is the result of RNC activity decades ago — including the hiring of off-duty cops to patrol around election sites — that Democrats alleged amounted to voter intimidation.

At least one election law expert, UC-Irvine School of Law’s Rick Hasen, has argued that Trump may have violated the decree in his calls for vigilante poll watchers if one interpreted him to be an agent of the RNC. Clarke, meanwhile, called for the RNC case to serve as a guide for what can and cannot be done at the polls in November.

Bad times.

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