Justice Dept. curtailing election observers inside polling places
By SARI HORWITZ | The Washington Post | Published: October 6, 2016
The Justice Department is significantly reducing the number of federal observers stationed inside polling places in next month's election at the same time that voters will face strict new election laws in more than a dozen states.
These laws, including requirements to present certain kinds of photo IDs, are expected to lead to disputes at the polls. Adding to the potential for confusion, Republican presidential candidate Donald Trump has called for his supporters to police the polls themselves for fraud.
For the past five decades, the Justice Department has sent hundreds of observers and poll monitors across the country to ensure that voters are not intimidated or discriminated against when they cast their ballots. But U.S. officials say that a 2013 Supreme Court decision now limits the federal government's role inside polling places on Election Day.
"In the past, we have . . . relied heavily on election observers, specially trained individuals who are authorized to enter polling locations and monitor the process to ensure that it lives up to its legal obligations," Attorney General Loretta E. Lynch told a Latino civil rights group over the summer. "Our ability to deploy them has been severely curtailed."
In recent months, the Justice Department and civil rights groups have successfully sued to block a number of states such as North Carolina that have new voter restrictions that critics say target minority voters. But advocates are worried that these hard-won courtroom victories might not be enough to protect voters if the federal government isn't able to enforce the law on Election Day.
In the 2012 presidential election, the last before the court ruling, the Justice Department sent more than 780 observers and other personnel to polling places in 51 jurisdictions in 23 states to watch for unlawful activity and write up reports about possible civil rights violations. The observers were specially trained by the Office of Personnel Management and they were required to be inside polling places.
Justice officials say this year they are sending observers to fewer than five states - and only to those locations because the oversight has been ordered by judges in specific cases. Five weeks out from the election, officials said they would not specify the exact number of observers.
There are 14 states where poll workers are being asked to implement new laws, including voter ID requirements, for the first time in a presidential election. Federal observers will not be sent inside polling places in those states.
"It's a game changer," said Kristen Clarke, the president and executive director of the Lawyers' Committee for Civil Rights. "Historically, the federal observer program has been a valuable and necessary tool to help intimidation and harassment of minority voters."
"Without those protections, we're bracing for the worst," Clarke said. "All of this unfolds at a moment when we have a presidential candidate who has called for law enforcement and untrained individuals to monitor activity at the polls."
Trump is encouraging his supporters to sign up on his website to be a "Trump election observer." He has told supporters in Pennsylvania to be vigilant for voter fraud at the polls, saying that "cheating" is the only thing that will stop him from defeating Democratic presidential candidate Hillary Clinton in that battleground state.
"You've got to get every one of your friends. You've got to get every one of your family. You've got to get everybody to go out and watch, and go out and vote," Trump said in August at a rally in Ohio. "And when I say 'watch,' you know what I'm talking about. Right? You know what I'm talking about. I think you've got to go out and you've got to watch."
Justice officials said they had no choice but to cut the number of observers. The Supreme Court's 2013 Shelby County v. Holder ruling on the Voting Rights Act "curtailed our ability to deploy observers" to states that used to need federal approval before making changes to election or voting laws, said Vanita Gupta, head of the Justice Department's civil rights division.
The Supreme Court's ruling immediately opened the door for laws with new voting restrictions. Less well-known was the effect it had on the Justice Department's efforts to monitor elections. The government had relied on a key section of the 1965 Voting Rights Act that was invalidated by the Supreme Court for its authority to send observers to states with a history of discrimination.
The court said Congress had to come up with a new formula based on current data to determine which states should be subject to federal oversight. Congress has not yet acted.
"Shelby County significantly impacted the department's ability to watch for problems while elections are taking place," according to a Justice Department fact sheet.
The Justice Department in the past has sent two types of lawyers to the polls: observers and monitors. Observers work inside polling places. Monitors, by contrast, are not allowed to go inside polling places unless state officials give them permission.
Despite the court ruling, officials believe they can send monitors across the country.
"We will still be able to send out a robust team of monitors this November," Gupta said.
But Gerald Hebert, the executive director of the Campaign Legal Center, said it is critical to have federal observers who can actually go inside the polling places in the same way that candidates and political parties in most states can designate someone to be inside as a poll watcher.
"You have to distinguish between sending a lawyer to a state who sits down at the U.S. attorney's office and waits for people to call in," said Hebert, an official in the Justice Department's voting section for 20 years who went to several states on Election Day to monitor elections.
"They're not in the polling place and they're not even at the polling places," Hebert said of the monitors. "They're usually downtown at a hotel or a U.S. attorney's office. That's a lot different by a long shot than federal observers inside the polling place, because discrimination at the polls doesn't take place outside."
Without federal observers, "there's nobody watching the [other poll] watchers" who can intimidate or challenge voters or slow down the process and, for example, create a long line at lunchtime when voters have limited time to vote and get back to work, Hebert said.
The Justice Department said it will release a phone number and email address for voters to contact if they experience intimidation or harassment.
"We watch carefully, meticulously documenting the voting process with an eye for potential violations of federal statutes that protect the right to vote," Gupta said. "And we often find that the simple fact of our presence in the jurisdiction helps defuse tension and avoid problems."
Some voting rights advocates say that the Justice Department did not need to reduce its election observers because the Supreme Court's ruling did not specifically mention federal observers. Regardless, advocates have questioned why Lynch revealed over the summer the department's plans to cut the observers when she spoke to a civil rights group.
"There was no need to announce that it's open season on voters at the polls because there won't be any federal observers there inside," Hebert said.