States wise to pushback against federal election monitors
In 2022, in the United States of America, the Department of Justice sent monitors to a number of states to watch over election proceedings as they unfolded in and around polling places. Many of these states had been subject to inspection since the passage of the Voting Rights Act (VRA) in 1965, a time when some of them placed barriers such as literacy tests and poll taxes in front of residents, not least to prevent many of their Black citizens from casting a ballot. With those days in the distant past, Washington now determines where to send its agents based on a multitude of obscure and seemingly arbitrary metrics. According to an unnamed official quoted in a Politico story just before Election Day last year, “The decision on when to send election monitors is based upon the facts and circumstances on the ground with respect to a particular jurisdiction in a particular election.” The purpose can be motivated by “questions about possible discrimination or intimidation.”
The states chosen in 2022 were an eclectic bunch. There were many from the South, but the Justice Department was also interested in locations within Massachusetts, New Jersey, and New York. Perhaps not coincidentally, 20 of the 64 total jurisdictions were in Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin, states where former President Donald Trump contested the 2020 presidential election result. It was places like these that Attorney General Merrick Garland seemed to have in mind when he discussed his department’s concerns about intimidation, harassment of poll workers, and “armed vigilantes” prowling voting stations and ballot drop boxes.
Not surprisingly, the implication they could not run a free and fair election upset officials from several of the targeted states. Two states refused federal monitors entry to polling places and forced them to observe from outside. In letters explaining these decisions to Justice’s Civil Rights Division, the states’ general counsels Brad McVay of Florida and Jesus Osete of Missouri asserted neither state nor federal law authorized the presence of federal government personnel inside polling places.
The federal government claims amendments to the U.S. Constitution such as the 15th, 19th, 24th, and 26th give it a compelling interest in the policing of elections. These provisions prohibit states from denying or abridging the right to vote because of characteristics like race, sex, age, or the ability to pay poll tax. Through legislation like the VRA, Washington has then commandeered the power to address racially and ethnically biased electoral rules and the use of eligibility tests and discrimination in the exercise of voting rights. It deploys enforcement officials to give these regulations teeth.
The federal government regulates public accommodations and Justice cites the Americans with Disabilities Act (ADA) as authority for its presence at polling places. It also funds election administration, providing it a further stake in the process. The Help America Vote Act passed following the contested 2000 presidential election authorized financing to modernize tabulation equipment, computerize statewide voter registration databases, and make polling places more accessible. Democrats want the federal government to do even more. The proposed Freedom to Vote Act calls for robust national standards governing early and mail voting, as well as the extension of rights to convicted felons who have served their terms.
Many of the elections states administer are for federal office. To be sure, the Framers viewed them as much a collection of state races set within a federal system than singular national contests. House seats and electoral votes are allotted to the states and Senators serve individual states. But, because these elections select the people who will lead the federal government, the contests for U.S. House, Senate, and president naturally confer on Washington a direct interest in their administration and outcome.
Regardless, voting in this country is principally a matter for the states. Forty-nine of them explicitly confer the right to vote on their residents who are citizens of the United States—Arizona nibbles at this but does not expressly recognize the entitlement, stating, among other language having to do with elections, “no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” Over half the states’ constitutions also include language guaranteeing elections are “free”, “free and equal”, or “free and open.” Courts have interpreted this as encompassing a fundamental right for a state’s adult residents to vote. By contrast, there is no right to vote enumerated by the U.S. Constitution. The document also says nothing about proper election administration. In fact, as recently as 2013 the Supreme Court interpreted its Tenth Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” as evidence of the Framers’ wish for the states to regulate elections.
There is no right to vote enumerated by the U.S. Constitution.
There are those who see voting as a national right.The U.S. Constitution’s Supremacy Clause has effectively made the indirect and negative language about voting a kind of “floor” below which states cannot go in their modification of voting rights. The XIV Amendment, ratified soon after the Civil War, also muddies the water by asserting “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside” and that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” But even if the United States recognizes a right to vote here in Section I of the Amendment, it does not bestow it, rather the Constitution commands the states to fairly and fully protect all rights they themselves grant residents because these people are also the nation’s citizens. Section II emphasizes this subordinate role. It prescribes removing from the calculation used to apportion House seats among the states all male voters over the age of 21 (categories that now, of course, include women and young people over 18) as retaliation if they are prevented from exercising their constitutional right to vote. The United States cannot simply reinstate these individuals’ right to vote because the Constitution did not confer it to begin with.
The Constitution does provide the federal government an effective form of redress, however. President Trump’s pressuring of Vice President—and President of the Senate—Mike Pence to overturn what he considered to be the illegitimate outcome of the 2020 election was clearly extraconstitutional. The President of the Senate’s job is merely to “open all the certificates” sent by the states and have the electoral votes “counted.” But Article I Section 5 permits the House and Senate to “be the Judge of Elections, Returns, and Qualifications of its own members.” By majority vote, the bodies can refuse to seat any individual they do not want, including those elected dubiously. They can also expel members for any number of reasons.
The main rationale for the deployment of the Justice Department monitors is to prevent the intimidation of voters. There is a significant body of federal law on this issue, much of it fleshed out by the VRA and therefore particularly sensitive to race. It defines intimidation broadly to include threats and coercion in the acts of voting and registering to vote when the intention is to have eligible voters act against their will, whether that is to prevent them from voting, force them to vote when they prefer to abstain, or have them vote for a candidate when they prefer another. Such intimidation might take many forms, including harassing and questioning the qualifications of individuals as they go to vote, disrupting voting lines or blocking the entrance to a polling place, approaching voters near polling places while wearing military-style uniforms or impersonating an elections official, and brandishing firearms in or outside a polling place. It is difficult to believe the states are incapable of preventing such intimidation without the assistance of the U.S. Department of Justice.
It also seems appropriate to question the decision to act preemptively. It makes sense to surveil suspected drug lords and domestic terrorists because it is often difficult to find witnesses willing to report and testify about their activities and their potential to commit grave harm is considerable. But ordinary people at a polling place? Law enforcement officials do not monitor businesses, schools, and churches this way because they rely upon citizens and officials to report harassment and threatening and coercive criminal behavior. Here Americans wish to practice their rights to engage freely in commerce, education, and worship. Why take a different approach to voting? There is no need to. Just as American citizens are on continual watch for violation of their own, their families’, and their friends’ rights as members of neighborhood watchdog, good schools, and community groups, there are others observing polling places. These nonpartisan citizen organizations are considerably less intimidating and biased than the U.S. Department of Justice. Of course, the Democrats and Republicans have their poll watchers as well, but permitting them to go quietly about their work inserts checking and balancing into the process of which James Madison would be proud.
This is why Garland leans heavily on enforcement of the ADA to justify his monitors’ presence. The states should not think of them as “federal cops”, but akin to workplace inspectors, visiting officials merely ensuring compliance with regulations. As Osete implies in his letter, this is a ruse. The ADA is enforced prior to election day. State and local boards thoroughly train poll workers to assist disabled voters and the public facilities they choose as polling places have been subject to the law for 30 years.
Federal monitors might make more sense if intimidation were pervasive. It is not. The Reuters news agency identified about 120 threats of death or violence made to election workers and officials in eight of the most hotly contested states in the 2020 presidential election, but just a single prosecution. That year there were only four prosecutions of voter intimidation in the entire nation. Such a poor conviction rate is as suggestive of a weakness in the law or a reluctance of authorities to use it than the need for monitors to detect violations. The figures contrast dramatically with the roughly 275 convictions for voter fraud that, according to the nonpartisan A-Mark Foundation, prosecutors across the country obtained between 2016 and 2020. Opponents of voter ID often call the policy response to voter fraud “a problem in search of a solution.” With such little demonstrated intimidation, we might say the same of the federal government’s desire to send monitors to the polls.
In fact, if intimidation is a real problem, it is not in or just outside the polling places where the Department of Justice has focused its attention. Election officials received many of the threats Reuters identified in 2020 over the telephone or online. As for voters themselves, federal law defines intimidation broadly, as an effort to interfere with a person’s right, “to vote or to vote as he may choose.” The opportunity to threaten and coerce this personal decision appears much greater when citizens cast votes by mail—as 39 million Americans did in 2022. Intimidation of vulnerable or impressionable people in the privacy of a home is surely more effective—not least because it is considerably more difficult to detect—than when they are about to cast a vote at a polling place in full view of dozens of other Americans, including trained election workers. Vote by mail encourages intimidation as well as fraud.
Voting under the gaze of federal government officials does little to give Americans a good feeling about an election.
Perhaps Garland thought the states were part of the problem and it was their agents that constituted the intimidation voters reportedly experience. This makes little sense. Federal government officials are likely to appear more threatening than their state counterparts. Public opinion polls repeatedly show Americans fear and distrust the federal government more than they do their state’s government. After all, it has at its disposal an extensive law enforcement apparatus—about 137,000 individuals authorized to make arrests or carry firearms or both—of which the Department of Justice employs just over 43,000. The national government’s chief executive officer is also commander-in-chief of the world’s strongest military force. With regards to motive, the federal executive and its Department of Justice are no less political than their equivalents in the states. The president is chosen by partisan election and selects his attorney general who must win approval from a partisan Senate. The United States regularly contributes to election monitors sent by international organizations to countries like Kenya and the Philippines. The belief is that impartial external observers can deter infringements of voting rights and, in turn, imbue winners with greater democratic legitimacy. The federal government is neither impartial nor external to what goes on in the states.
The presence of Justice Department personnel, McVay and Osete wrote in their letters could “potentially undermine confidence in the election.” Politicians, particularly Democrats, are continually asking us to ignore claims by people like Trump that the outcomes of American elections are fraudulent. They implore us to have faith in the process. Voting under the gaze of federal government officials does little to give Americans a good feeling about an election. Perhaps it is no coincidence that according to an October 2022 Pew Research Poll of Democrats, Blacks and Latinos, the voters the Justice Department’s monitors are traditionally assigned to protect, expressed the least amount of confidence in how elections in their community and the country are run.
The federal government indubitably has an interest in the election process. That of states, however, is greater. When there appears a legitimate need to send agents to monitor what is going on in and immediately outside of polling places, it should be governors and their attorneys general dispatching them in compliance with state law. Good intentions might motivate Washington’s assistance in the endeavor, but it should not arrive uninvited.
Andrew Taylor is professor of political science in the School of Public and International Affairs at North Carolina State University.
