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Will The New Era Of Limited Federal Monitoring Still Protect Voter Rights?

Chicago residents cast early ballots on Tuesday for the Nov. 8 election.
Scott Olson
Getty Images
Chicago residents cast early ballots on Tuesday for the Nov. 8 election.

This year's presidential election will be the first in a half-century without the significant presence of federal observers at polling places. That's because in 2013 the U.S. Supreme Court struck down a key provision of the Voting Rights Act, and when the court wiped out that section, the statute that provided for election observers went, too.

The landmark decision in Shelby County v. Holder doesn't mean civil rights officials are totally disarmed. The Justice Department will still send out "hundreds" of "monitors" to oversee Election Day compliance. But the number is smaller than it was before, and monitors can only enter the polling place if local officials agree. Observers, by contrast, had a statutory right to be inside polling places. They were trained specifically for the task. There also were many more of them, and they had far more authority than monitors.

"We can't deny the costs of Shelby County" in terms of enforcement powers, says Vanita Gupta, assistant attorney general for civil rights.

"The hope is that just by having the presence of the federal government at polling sites, even if we may be slightly more diminished or spread thinner, that our sheer presence has sufficient deterrent effect and gives voters the confidence that they need to feel like the process is fair," she adds.

Gupta says she expects federal monitors to fan out over half the states on Election Day.

Observers vs. monitors

None of these monitors, however, will have the automatic legal clout that observers did. Unlike monitors, observers typically were stationed inside polling places to watch partisan poll watchers and to make sure rights were enforced. They would also verify that the number of voters jibed with final vote tallies. Indeed, they could even go inside the polling booth to make sure assistors were accurately recording the votes of people who needed help casting their ballots.

Gerry Hebert, who served in the voting section of the Justice Department for 21 years, says the presence of federal monitors is "good as far as it goes, but it doesn't really replace that kind of on-site complete oversight within the polling place."

He recalls observing polling places where officials simply turned away people who spoke a language other than English, on the assumption they were not citizens.

And so, in some instances, observers had to have poll officials removed from polling places.

None of that authority exists today, except for the few court-ordered observers in seven mainly small jurisdictions.

"Really, none of these efforts are an adequate substitute for the protections that had long been provided by the federal observer program," says Kristen Clarke, president of the nonpartisan Lawyers Committee for Civil Rights Under Law.

Clarke is concerned, particularly, by Republican nominee Donald Trump's rhetoric.

Charges of a "rigged" election

In campaign speeches, Trump is telling crowds that the election is "rigged," that people are "going to walk in and they're going to vote 10 times maybe." He tweeted that dead voters had delivered President Obama's victory in 2012. Earlier this month, at a meeting with border agents, he claimed, without any evidence, that the federal government is "letting people pour into the country so they can go and vote."

Numerous voting studies have shown that actual examples of in-person voting fraud are extremely rare. News 21, an investigative reporting project funded by the Carnegie and Knight foundations, found that in all elections nationwide from 2000 to 2011, there were 150 alleged cases of double voting, 56 cases of noncitizen voting and 10 cases of voter impersonation. Of those allegations, many never led to charges or were dismissed. Loyola Law School professor Justin Levitt, who is on leave to serve as head of the Justice Department voting section, found even fewer such examples. His study found 31 credible incidents of voter fraud out of more than 1 billion votes cast from 2000 to 2004.

Experts note that in-person voter fraud is rare because it's difficult, risky and largely ineffective. In order to sway an election, an army of voters would have to cast multiple ballots, visiting multiple polling places; would have know the names and addresses of the people they are impersonating; and would have to either present fake IDs or forge signatures, all of which would subject them to criminal prosecution.

In speeches, Trump is urging his voters to be their own army of monitors at polling places other than their own — "Go check out other areas," he tells supporters.

That said, there is no evidence of a concerted effort by the Trump campaign to intimidate voters.

There is, however, considerable worry among civil rights lawyers about what rogue Trump supporters might do, spurred on by Trump's rhetoric. Some even raise the possibility that Trump supporters in open-carry states might arm themselves with guns and stand ostentatiously near polling places.

"I think it would be a mistake to turn a blind eye to much of what we've heard this election cycle," cautions the Lawyers Committee's Clarke.

Many new state voting laws

Then, too, there is the fact that after the Supreme Court gutted much of the Voting Rights Act, Republican legislatures in a significant number of states passed laws that make it more difficult to vote. Though the courts have struck down some of those laws as intentionally discriminatory, civil rights lawyers contend that some state and local officials continue to undermine those court decisions.

For instance, in Texas, where a federal appeals court invalidated a voter ID law for being too strict, there continue to be disputes about procedures for affidavits that allow people to vote without an approved form of photo ID. By federal court order, voters who present utility bills and other specified forms of non-photo ID may cast ballots if they sign an affidavit declaring they do not have one of the approved photo IDs. But the state is collecting all those affidavits with an eye toward testing their veracity.

In Harris County where Houston is located, to cite just one example, County Clerk Stan Stanart has announced that if a voter signs an affidavit declaring that he or she does not have the proper photo ID, that individual could be prosecuted for fraud if state data rolls later show the individual has in fact been issued an acceptable form of ID.

"If someone is lying," Stanart says, "we will be turning that over to the DA so they can investigate."

Why would someone deliberately lie about not having an acceptable ID when they in fact had been issued one?

Stanart says some people "who do not like the photo ID" see this as "their method of protesting," and that "we've seen it out on the blogs, seen it on the Internet." He says the warning about a potential fraud investigation is to "tell people ... don't get yourself in a position where you can get in trouble." Critics see the explanation as less benign.

Assistant Attorney General Gupta believes that in most places, even without the authority that federal observers used to have, federal monitors in this election will be able to defuse tensions, deter intimidation and prevent mischief.

At least that's her hope.

Everyone knows there will be difficulties of some sort. And to deal with them, the Justice Department and civic and civil rights organizations are setting up hotlines for voters to call if they observe problems at the polls.

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.
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