One tactic is making the lines slow down with spurious challenges
The state’s unique rules make it vulnerable to Election Day mischief. In a tight race, that could help Donald Trump.
By Erick Trickey
In 2004, hundreds of University of Pittsburgh students waited for hours to vote in the presidential election. The local Democratic Party, alarmed at the bottleneck, handed out pizza and water to encourage the students to stay. Pittsburgh Steelers Hall-of-Famer Franco Harris worked the line, armed with a giant bag of Dunkin Donuts, and Liz Berlin of the Pittsburgh band Rusted Root performed on guitar.
The stalled line wasn’t because of the high turnout. It was what was happening at the check-in desk.
“The attorneys for the Republican Party were challenging the credentials of pretty much every young voter who showed up,” recalls Pat Clark, a Pittsburgh activist and registered Democrat who was working for an election-protection group that day.
The GOP attorneys were acting as poll watchers. A common practice in many states, partisan poll watching helps parties get out the vote and keep an eye out for irregularities. But in Pennsylvania, laws governing how observers can challenge voters are unusually broad, and that makes them susceptible to abuse.
On that day in 2004, students who were challenged by the GOP lawyers were told they needed to find a friend who could sign an affidavit proving their identity and residence. Other battleground states, concerned that their voter-challenge laws could be misused, have limited or even abolished them in the past decade. But Pennsylvania hasn’t modified its rules. That worries election experts, who fear Donald Trump’s persistent calls for supporters to monitor the polls to prevent cheating could create conflicts and chaos inside and outside of precincts across the state.
“I hope you people can … not just vote on the 8th, [but] go around and look and watch other polling places and make sure that it’s 100-percent fine,” Trump said at an August 12 rally in Altoona, in rural central Pennsylvania. “We’re going to watch Pennsylvania—go down to certain areas and watch and study—[and] make sure other people don’t come in and vote five times. … The only way we can lose, in my opinion—and I really mean this, Pennsylvania—is if cheating goes on.”
In a speech 10 days later in Ohio, Trump dropped an ominous hint that he had more in mind than just witnessing democracy in action: “You’ve got to get everybody to go out and watch, and go out and vote,” Trump said. “And when [I] say ‘watch,’ you know what I’m talking about, right?”
Trump’s claim that widespread voting fraud could swing the presidential election has been widely debunked; a national study discovered only 10 cases of fraud by misrepresentation from 2000 to 2012—1 in every 15 million eligible voters. But Trump’s remedy could have a very real and much larger impact. In a state that has been described as a “blue wall,” crucial to Clinton’s election chances, and where polls show her lead in the 3 percent range (down from 9 percent a month ago), blocking likely Democratic voters in Pennsylvania’s major cities could help Trump tighten the results on November 8.
“Instead of seeing orderly poll watching,” says Wendy Weiser, director of the Brennan Center for Justice’s Democracy Program, “we might see a lot of individuals trying to take on the role of election officials or law enforcement, and crossing the line into intimidation, discrimination and polling place disruption.”
Pennsylvania knows it has a problem on its hands, or at least the potential for one. That’s why the Pennsylvania Department of State issued guidelines in 2012 to help election workers cope with the state’s broad law.
The guidelines, which are nonbinding, call on election workers to prevent watchers from challenging voters “routinely, frivolously or without a stated good faith basis.” Wanda Murren, press secretary for the Department of State, explains that using challenges “to intimidate or harass certain voters” could “rise to the level of criminal behavior.”
There’s only one problem with the guidelines. They don’t match up with the law.
Poll watchers can’t get near voters as they’re voting, but they can watch them check in. Many poll watchers do this simply to alert their respective parties about who hasn’t voted, so that the parties can urge their loyalists to get to the polls. But the other thing poll watchers can do is challenge a voter’s legitimacy before he casts a ballot. The law is clear, albeit broad: Watchers are “entitled to challenge any person making application to vote and to require proof of his qualifications.”
Though such challenges are rare, say election officials in several Pennsylvania counties, it is nevertheless much easier to issue a challenge than it is to answer one. The burden of proof is on the voter, who then has to either vote on a provisional ballot or find a witness who lives in the same precinct (say, a friend, spouse or neighbor) to sign an affidavit vouching for the voter’s identity and residence.
That’s alarming to the Brennan Center for Justice, which has recommended that states abolish Election Day voter challenges. “I think there are much more effective, less confrontational, and less risky ways to ensure the integrity of our elections,” says Weiser. The Brennan Center has urged Pennsylvania’s secretary of state to guard against abuse of its challenge rules, which date from 1937. “Unfortunately, Pennsylvania’s challenger law doesn’t have a lot of specificity about what proof you need to have and how you do it.”
That lack of clarity was on full display in 2004, in the precinct at the University of Pittsburgh. Every time a challenge was made, poll workers on site called the county’s central elections office to verify the voter’s registration. At one point, a poll watcher for the Bush-Cheney campaign tried to stop the verification process, perhaps hoping to disqualify the voter immediately, but the election official refused. That evening, the supervisor at the poll called the sheriff to try to eject the poll watchers, but Republicans obtained a court order that allowed them to keep watching—and challenging voters, according to Mike O’Connell, who was executive director of the Allegheny County Republican Committee that year. “No one was told to challenge every voter,” says O’Connell. “[It was] pesky poll watchers saying, ‘They’re actually supposed to register to vote before you let them vote!’”
Other states don’t allow party-line face-offs to overwhelm the voting process this way. Ohio eliminated Election Day voter challenges in 2006, after an aborted Republican plan to deploy challengers two years before had led to fears of partisan confrontations at the polls. Five other swing states—Virginia, Colorado, Nevada, Iowa, and New Hampshire—have raised their standards for voter challenges in the past decade. Florida requires challengers to state a valid reason for the challenge in writing; North Carolina requires “affirmative evidence” that the voter is ineligible.
No bills to tighten the challenge process are pending in Pennsylvania’s Legislature. Just the opposite. Pennsylvania Republicans want to make it even easier to watch and challenge this Election Day. Last week, the Pennsylvania House of Representatives advanced a bill that would allow residents to be certified as watchers anywhere in the state. Current law allows them to watch polls only in the county they live. Republicans, on a near-party-line vote, amended the bill to give it immediate effect—so it could allow Trump poll watchers to range freely across the state on Election Day. But the bill would have to get past Democratic Governor Tom Wolf, and House Democrats have charged that it would “allow outside agitators to intimidate your local poll workers and make it harder for you to vote.”
One part of Trump’s idea of poll watching is clearly illegal.
“We have to call up law enforcement,” Trump said at the speech in Altoona in August, “and we have to have the sheriffs and the police chiefs and everybody watching.” But in Pennsylvania, police and sheriffs are banned from coming within 100 feet of a polling place on Election Day, unless they’re asked by election workers or three different voters to quell a disturbance. The law, meant to prevent voter intimidation, applies to police in and out of uniform, unless they’re voting.
Trump’s vision of police watching the polls, and his vague call for supporters to “go down to certain areas and watch,” sounds a lot like an aggressive and notorious voter intimidation campaign during New Jersey’s 1981 governor’s race.
That year, Republicans challenged voters at the polls in minority precincts, and they dispatched armed, off-duty police and deputy sheriffs to patrol polling places in minority neighborhoods wearing armbands that read, “National Ballot Security Task Force.” Ever since, a federal court order has barred the Republican National Committee from organizing ballot integrity or anti-fraud efforts that target minority neighborhoods. The order doesn’t apply to candidates, but it could limit Trump, because candidates usually turn to local parties to find poll watchers.
In 2003, despite the court order, someone tried the 1981 intimidation strategy in the Philadelphia mayor’s race. Men wearing suits with law-enforcement lapel pins and carrying clipboards drove around black neighborhoods in Philly in unmarked vans, watched voters go to the polls, and asked many of them for identification. Some warned falsely that voters could be arrested at the polls if they owed child support. The incident remains infamous in progressive election-protection circles.
In 2004, some of the University of Pittsburgh students who were caught in the interminable line arrived at the front to discover they weren’t registered in the poll books. Some of them were victims of a dirty trick played on college campus in three states in that year: canvassers sent by GOP operatives had gotten students to sign petitions supporting medical marijuana or lower car insurance rates, then used their information to submit bogus changes to their voter registrations.
One of the right’s favorite election intimidation stories also comes from Philadelphia. In 2008, two uniformed members of the New Black Panther Party stood outside a polling place in Philly, one of them carrying a nightstick, and allegedly used racial slurs against voters. The Justice Department sued them for violating election intimidation laws, and obtained an injunction that banned the nightstick-wielder from carrying a weapon near polling places. (Conservatives blasted the DOJ for scaling down the case by dropping the suit against the unarmed man, the New Black Panther Party and its chairman.)
It’s another of Pennsylvania’s election law oddities that when civilians intimidate voters, Pennsylvania’s ban on police at the polls may actually make it harder to stop them. In most of Pennsylvania, poll constables, who lack arrest powers and are usually unarmed, are the only security allowed in polling places.
It’s an election law oddity: When civilians intimidate voters, Pennsylvania’s ban on police at the polls may actually make it harder to stop them.
“Poll constables are generally elderly people paid about $100 a day,” says Paul Bauer, president of the Allegheny County Constables Association, the county in which Pittsburgh is located. If a serious disturbance broke out at a polling place, Bauer says, the poll constable could call him, and he’d call the sheriff. In Philadelphia (which doesn’t have constables), police respond to calls of polling-place disturbances “as needed,” a spokesperson says, and the district attorney’s office has dozens of civilian investigators ready to deploy on Election Day.
But if an uncertified, vigilante poll watcher were to one-up that New Black Panther and carry a firearm outside a polling place, it’s unclear whether he would be guilty of voter intimidation—or protected by Pennsylvania’s open-carry law. In Philadelphia, people need a license to carry a gun. But in the state’s other 66 counties, “non-licensees would be able to openly carry firearms in or about polling places,” says the Department of State’s Murren. State law prohibits guns in schools or courts, but not other voting locations. Carrying a weapon in or near the polls “may not rise to the level of voter intimidation,” Murren says. That’d be left to the election worker, constable, or peace officer called to the scene to decide.
If there were only one target where Trump would want his supporters to focus, it would probably be Philadelphia, a city Republicans often claim is a nest of Election Day lawbreaking. “The people in Western and Central Pennsylvania have to overcome what goes on down in Philadelphia—the cheating,” said U.S. Rep. Bill Shuster, a Republican, at Trump’s Altoona rally.
But Philadelphia and its suburbs are already some of the most closely watched cities in Pennsylvania on Election Day. In the 2012 presidential election, suburban Bucks County certified nearly five poll watchers per precinct. In Philadelphia itself that year, Democrats deployed about 4,000 poll watchers to the city’s 1,686 precincts, while Republicans sent out about 1,400.
Some conservative complaints about Philly are just conspiracy-theory speculation about a seemingly weird fact: In 2012, 59 Philadelphia precincts recorded not a single vote for Mitt Romney. But even Joe DeFelice, executive director of the Philadelphia Republican City Committee, says that’s not surprising if you know the city’s electoral map. The zero-Romney precincts are black, Democratic neighborhoods with minuscule numbers of registered Republicans. “It’s next to impossible to deduct votes from the machine,” DeFelice says.
But DeFelice says there are voting irregularities in Philadelphia, and Republican poll watchers can help expose some of them. “Damn right, there’s cheating!” he says.
Calvin Tucker, a Trump delegate from Philadelphia’s Ward 22, shown July 26, 2016.
DeFelice himself exposed the case of Joseph Cheeseboro, the mysterious South Philly voter who appeared to vote in two precincts in 2007 and used a 7-Eleven as an address. In some Philly precincts, he notes, election workers have been caught encouraging voters to write in a certain candidate.
And on Election Day 2014, just after the polls closed at a Philadelphia recreation center, a Republican poll watcher noticed something odd: two election workers manipulating a voting machine. “One more time,” she heard one say to the other. The Philadelphia district attorney indicted the workers on charges of illegally adding six votes to the machine. The alleged motive: to balance the registration books, which had six more signatures than the votes cast. The six-vote fraud took place during the 2014 gubernatorial election—which the winner, Democrat Tom Wolf, won by 345,000 votes.
Because Democrats outnumber Republicans 7 to 1 in Philadelphia, there are no Republican election workers in many neighborhoods, DeFelice says. And some Democrats seem to like it that way. In 2012, a judge ordered 300 Republican election workers deployed to overwhelmingly Democratic precincts—and at 100 of them, DeFelice says, the Democratic election workers refused them entry. Having sheriff’s deputies deliver the court orders seems to have solved that problem, DeFelice says. But in precincts in which Republicans are rare, a poll watcher can be the GOP’s only eyes.
Al Schmidt, the lone Republican among Philadelphia’s three election commissioners, authored a report in mid-2012 that found small numbers of voting irregularities, including one example of a person double-voting and 19 non-citizens who voted. Since then, he’s referred reports of election-day mischief to Philadelphia’s district attorney, Democrat Seth Williams, who launched an election-fraud task force in 2014 and indicted nine people on charges of election law violations in 2015. The cases include people casting two votes, for themselves and for a relative.
Schmidt says poll watchers can help prevent some of the irregularities he’s found. But after four years of bird-dogging Philadelphia’s elections, the former analyst for Congress’ Government Accountability Office says any voter fraud happens on a small scale—too small to affect a major election. “Voter fraud, to the extent it occurs, is happening due to local races, where a handful of votes can make a difference,” Schmidt says. “Whenever I’m seeing it, it’s not actually affecting national level races.”
Without ever naming Trump, Schmidt knocks down nearly every one of the calls to action that Trump made in Altoona. “Poll watchers have to be registered voters in the city of Philadelphia,” Schmidt says. “Someone talking about, ‘We need to go down to Philly’ or ‘some places in Pennsylvania to keep an eye on the polls’—that’s not possible.” Schmidt says there’s a “very good reason” to prohibit out-of-town watchers: people ought to be watchers near home, where they know the town and its election system. With a million registered voters in Philadelphia, he says, there are plenty of potential poll watchers available.
Does Schmidt have confidence in Pennsylvania’s election system? “Absolutely, I do,” he says.
Erick Trickey is a writer in Boston.
Read more: http://www.politico.com/magazine/story/2016/09/2016-election-pennsylvania-polls-voters-trump-clinton-214297#ixzz4M3QK56VC
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