November 5, 2022

Voting Rights and First Amendment Rights on Election Day


PERF Members,

Last week I talked about how policing in a democratic society is so essential, especially today. Whether it was defending the U.S. Capitol on January 6 or investigating Russian war crimes in Ukraine — or most recently, getting to the scene of a potential homicide in San Francisco and wrestling a madman to the ground — cops have stepped up. Next Tuesday, Americans will go to the polls to exercise their most basic right: the right to vote. And cops will play an important role in making sure citizens can vote without fear of intimidation.

I asked Mary McCord, Visiting Professor at the Georgetown University Law Center and the Legal Director at the Institute for Constitutional Advocacy and Protection (ICAP), to describe how disputes over election security and voter intimidation could create challenges for local law enforcement at polling places.

Professor McCord was the Acting Assistant Attorney General for National Security from 2016-2017 and Principal Deputy Assistant Attorney General for National Security from 2014-2016. She also spent 20 years as an Assistant U.S. Attorney for the District of Columbia, including time as Chief of the Criminal Division.

Chuck Wexler:Tell me about the Institute for Constitutional Advocacy and Protection (ICAP).

Prof. McCord: We are primarily a litigating shop within Georgetown Law School. We litigate across a wide variety of issue areas, including criminal justice reform, the First Amendment, and separation of powers. But we also do a lot of litigation related to protecting core democratic processes and against political violence. We put out legal guidance and facts sheets to help public officials and voters know what constitutional rights are at play when we talk about things like elections and demonstrations, and how to protect public safety and the right to vote without infringing on constitutional rights.

Wexler: We last interviewed you in 2020, before the presidential election. Given all that’s happened since then, how in your professional opinion does the current situation differ from 2020?

Prof. McCord:  I think we’re at an even more dangerous time than we were in 2020. And we were pretty concerned in 2020.

In the immediate aftermath of the 2020 election, we started seeing violence at ballot counting locations and threats against election officials. This culminated in the January 6 attack on the U.S. Capitol.

The start of arrests related to January 6 quieted things down a bit in terms of person-to-person threats or intimidation, but it didn’t really cool things off online. Members of Congress who voted for impeachment were harassed online, and even sometimes in person as well. Election officials and other public officials continued to be harassed throughout 2021 and into 2022. Many other cultural issues have been hotbeds for more intimidation and threats. Now we’re seeing threats and intimidation both online and in person.

This is part of a localized strategy among extremists. Immediately after January 6, some national extremist groups disbanded in favor of local chapters, like the Proud Boys and the 3 Percenters. A post on the extremist platform Gab urged people to “focus on county over country, capture your local county, then several of them, then maybe your state.” That’s the kind of appeal we’ve been seeing at the local level — threats against election workers, county board members, school board members, teachers, and public health officials. In this election season there have been threats against people running for office: people have had effigies hung in their yard, they’ve been shot with BB guns while out campaigning.

And now we’re a week away from the election, and we see the recruitment of extremist poll watchers on the idea that they’ve got to be there to protect against election fraud. We also see people showing up, armed and in military gear, at ballot drop boxes. And we’ve seen misleading signage outside of ballot drop boxes. These things are all fraught with danger in ways that are very, very damaging to our democracy.

Wexler: You’re an experienced federal prosecutor, so I’m going to ask you to put on a different hat and talk about some of the things that police officers should be doing if problems arise at polling places. What kinds of things should they look for? When does someone cross the line from exercising their First Amendment right to voter intimidation?

Prof. McCord: This is a really tough question. Voter intimidation is illegal everywhere — there are federal voter intimidation laws as well as voter intimidation laws in all 50 states — but there are no definitions in the statutes about what intimidation is. Sometimes intimidation butts up against the First Amendment. The question is, where is that line?

Certainly armed groups at polling places can be very intimidating, particularly armed groups with military gear or patches that indicate some association with an unlawful private militia. That also would likely violate state law, since no state permits private militias to take the law into their own hands. Even if they say they’re there to protect against voter fraud, they don’t have any authority under federal law, state law, or the Second Amendment to do that. And it can be very intimidating.

Other things can be very intimidating as well, like asking people their qualifications to vote. If you’re not an election official, you don’t have any authority to do that. Or following people to and from their vehicles, taking down their license plate, asking them for identification, providing misleading or false information about the voting process, suggesting that voters will be committing crimes if they do things that are not actually unlawful in the state.

Intimidation can also be aggressively challenging voters as they come in to the polls, or bombarding them with partisan types of statements, loudly or too close. Or getting in their way, blocking access to polling places.

Sometimes people confuse voter intimidation laws with no-electioneering zones. All 50 states have some zone around polling places— it can be as little as 50 feet and I’ve seen it as much as 200 feet — within which no electioneering is allowed: no trying to convince somebody to vote for your candidate, and no passing out flyers or handing out buttons, even though those are all perfectly legal forms of speech that are protected by the First Amendment. It’s okay not to allow that type of protected speech within this zone because the constitutional right to vote without any interference is so sacred. Some people think that laws against voter intimidation apply only in the no-electioneering zone, but in reality, voter intimidation is illegal everywhere. If someone comes to your house to intimidate you, it’s illegal.

Local law enforcement should talk in advance with election officials, local officials, and community members about what level of involvement would be appropriate for their community. Should they just be on call if they are requested to come out in response to potential voter intimidation, or would people feel more comfortable if law enforcement had a presence there? As you know, in some communities the presence of law enforcement itself can be very intimidating.

But certainly police can be called in if there are things they need to respond to, such as voter intimidation, and they can always ask people to step back and move out of the vicinity. Even if you’re not going to make an arrest for criminal voter intimidation, you can make sure that access to the voting place is free of intimidation.

Wexler: Who can help a police officer determine whether a given action represents a violation of a federal or state law or intimidation?

Prof. McCord: They probably should be talking with their district attorney. Because if they’re potentially going to make an arrest, the district attorney would have to approve any charges. In the moment, it can be something that you really do need to act on quickly.

As I said, police can always approach individuals and ask them to move back. If you have a group at a polling place on one side of the political divide, you may end up with another group counter protesting. If you end up with dueling protests, they can certainly be moved apart. That’s completely fine and content neutral.

Law enforcement should also think about what other crimes may have been committed. If people are there with weapons, are they complying with permit restrictions and other general laws in that jurisdiction? Plenty of states have laws prohibiting brandishing firearms or using firearms to intimidate. And some states prohibit firearms near or in polling places. As I mentioned, militias are not allowed in any state, even if the state doesn’t have a specific criminal statute about it.

Wexler: So it would be helpful for an officer to be able to confer with someone in the district attorney’s office as to whether the actions they are seeing violate the law?

Prof. McCord:  That’s right. I can’t tell you what the law in all 50 states is in order to give specific advice, but the DA should have some prosecutors on call 24/7 between now and Election Day, because they’ll know what the state law there allows a poll watcher to do.

Also, it can be very effective to have district attorneys and law enforcement, along with election officials, get the word out in advance about the things that won’t be tolerated here — the things we consider voter intimidation. A lot of the folks engaged in this type of activity are following what somebody at Clean Elections USA or some other election-denier organization is telling them to do, but many of them don’t actually want to get arrested.

Wexler: If people want more resources and information, how can your organization help law enforcement officials?

Prof. McCord:  On our website we have fact sheets on actions law enforcement can take to address and prevent voter intimidation and fact sheets about the anti-militia laws in all 50 states, one for each state. With specific questions, particularly constitutional questions, we’re available whether they come from a law enforcement official, district attorney, or attorney general. We’ve got attorneys who will dig into the particular law in that jurisdiction and help them out.

Below are links to election-related information from some other organizations:

Committee on Safe and Secure Elections

States United Democracy Center

National Policing Institute

Cybersecurity & Infrastructure Security Agency


I hope you all get out and vote. Thank you for all you do to protect our democracy.