By Canaan Suitt
During the first presidential debate between President Donald Trump and former Vice President Joe Biden, Trump failed to condemn white supremacists when asked if he would do so by moderator Chris Wallace. Trump asked for a specific group, and Biden named the Proud Boys, a group with a “yearslong reputation for not only violence but very clear ties to white supremacy” according to Amy Cooter, a lecturer at Vanderbilt who studies nationalism, race, and rightwing militias. Trump responded: “Proud Boys, stand back and stand by.”
On social media, far-right groups celebrated Trump’s remark, interpreting it as legitimation of their efforts to combat “radical leftists” and as a call to arms to monitor polling places on Election Day. Andrew Anglin, founder of the Neo-Nazi Daily Stormer, said: “I got shivers. I still have shivers. He is telling the people to stand by. As in: Get ready for war.”
As journalist David Neiwert and others have reported, Trump has emboldened far-right groups and raised their national profile throughout his presidency. In light of this history, Trump’s comments at the debate and the way in which they were received by far-right groups raised serious concerns about chaos on Election Day. Additionally, the Trump campaign and the RNC have committed to raising an “Army for Trump,” that is, recruiting up to 50,000 poll watchers to monitor polling places. These developments led Ben Ginsburg, a former Republican lawyer, to decry Trump’s weaponization of the traditional role of poll watchers, writing that “poll watchers are fundamental to the electoral process.”
During the second day of early voting in Fairfax, Virginia, a group of Trump supporters waving campaign flags and chanting “four more years” disrupted voting at a polling station by temporarily blocking the station’s entrance, with some poll workers and voters saying they felt intimidated by this activity.
Against this tense backdrop, state and local law enforcement officials are preparing to deal with voter intimidation, arrests, and even violence on Election Day. Georgetown Law’s Institute for Constitutional Advocacy and Protection has produced a factsheet on voter intimidation and related issues in preparation for November 3rd. As we close in on Election Day 2020 (finally!), here is an overview of the relevant law regarding voter intimidation in Virginia:
Voter intimidation is “conduct that is intended to compel prospective voters to vote against their preferences, or to not vote at all, through activity that is reasonably calculated to instill fear.” Federal law prohibits voter intimidation, with multiple federal statutes making it a crime to intimidate voters and other statutes providing for civil lawsuits based on voter intimidation. Additionally, Virginia law provides for the preservation of order at elections, making it unlawful for any person “to hinder, intimidate, or interfere with any qualified voter so as to prevent the voter from casting a secret ballot.”
Additionally, the First Amendment does not protect true threats, and in Burson v. Freeman (1992), the Supreme Court upheld, against a First Amendment challenge, “a Tennessee law that provided for a 100-foot ‘campaign free zone’ around the entrance to polling places.” Virginia law similarly creates a buffer around polling places, whereby “during the times the polls are open and ballots are being counted, it shall be 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.”
With regards to militias, “A private militia that attempts to activate itself for duty, outside of the authority of the state or federal government, is illegal.” The Second Amendment does not protect private militias from prohibition, and the Virginia Constitution and Virginia statutes prohibit private, unauthorized militias from operating outside state authority. Virginia law also prohibits falsely assuming the functions of law enforcement or wearing the uniform of officers. Additionally, while “Virginia does not have laws that expressly prohibit the presence of firearms at polling places… it does have several legal means of attaining similar results,” a study by the Coalition to Stop Gun Violence and Guns Down America found.
In sum, federal and Virginia state law provide ample legal protections against voter intimidation, whether perpetrated by private militias or other groups or individuals. In the midst of a very tense election, exacerbated by a pandemic and incendiary rhetoric from the presidential incumbent, it’s important to bear this in mind and to understand the law when we go to our polling places to vote.