“You’ve got to go out,” Republican presidential candidate Donald Trump told his supporters in Pennsylvania earlier this month. “You’ve got to get your friends. And you’ve got to get everyone you know. And you got to watch your polling booths.”
The real-estate-developer-turned-white-nationalist speaks in thinly veiled code. He never quite tells his followers explicitly which neighborhoods they should target, or how aggressively they should “watch” voters. “I hear too many stories about Pennsylvania,” Trump warns. In “certain areas” he hears “too many bad stories, and we can’t lose an election because of you know what I’m talking about.”
While the openly racist nominee hasn’t given detailed marching orders to his supporters, some of them have heard a fairly clear message. The Boston Globe spoke to a Trump support who plans to engage in “racial profiling,” looking for “Mexicans. Syrians. People who can’t speak American” at the polls.
He hopes to make these voters “a little bit nervous.”
Similarly, Talking Points Memo’s Tierney Sneed notes that “two Trump supporters in Virginia last week staged a 12-hour open carry “protest” outside a Democratic campaign office” — a potential preview of an Election Day tactic at polling places.
A pair of federal legal provisions, one civil and one criminal, confront this kind of conduct directly. Both prohibit conduct that “intimidates, threatens, coerces, or attempts to intimidate, threaten, or coerce, any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose.” The criminal version of this statute subjects violators to a fine and up to one year in prison.
Though there are fairly few court decisions explaining what constitutes voter intimidation under these laws, the few that do exist suggest that the law defines intimidation quite broadly. One case, for example, involved an African American insurance collector who was active in the Civil Rights Movement. White landowners refused to let him come onto their land, a restriction that made it impossible for him to do his job and ultimately required his employer to transfer him to another county.
A federal appeals court found that the landowners engaged in illegal voter intimidation if they prevented this man from coming onto their land to discourage his efforts to bring African Americans to the polls — even though property owners normally have an “almost unrestricted right” to exclude unwanted people from their land.
Other cases hold that a schoolteacher cannot be denied a job because their exercised their voting rights, and that landlords cannot sanction their tenants because those tenants assisted voting rights activists.
The law, in other words, has been applied to much more indirect methods of voter intimidation than a Trump supporter showing up at a polling place with a gun in order to scare away voters. That suggests that the individuals Trump is trying to deploy in order to “watch” the polls could be in a world of legal trouble if they heed their candidate’s call.
Justice Editor, ThinkProgress. Skeptic of the Supreme Court, hater of Samuel Alito, constitutional lawyer of ill firstname.lastname@example.org