Group Warns Trump's 'Election Observers' Can Lead to Voter Intimidation

Posted Oct. 12, 2016

MP3 Interview with Jennifer Clark, counsel with the Brennan Center for Justice Democracy Program, conducted by Scott Harris


After the Republican party won a number of key elections for governorships and control of state legislatures across the U.S. in 2010, 21 states passed an assortment of new laws that make it more difficult for specific groups of citizens to vote. These measures include restrictive voter ID laws, reduction in the days and hours of early voting, obstacles placed on registering new voters and accessing absentee ballots.

These voter suppression laws were made possible in large part by the Supreme Court’s 2013 ruling that gutted a key section of the Voting Rights Act of 1965. With the threat that a large number of voters, especially minorities and young people, could lose their right to vote as a result of these measures in the 2016 presidential election, legal challenges were mounted to overturn these laws in federal court.

By late July, some legal efforts succeeded in overturning or modifying several voter suppression laws in North Carolina, Wisconsin, Kansas, Texas, Wisconsin, Ohio and Michigan. While restrictions on voting rights remain in some states, these victories were substantial. However, there is growing concern that GOP presidential candidate Donald Trump’s charge that the November election will be “rigged,” and his call to supporters to become election observers to challenge alleged fraud at the polls, could result in attempts to intimidate certain groups of voters when they show up to cast their ballot. Between The Lines’ Scott Harris spoke with Jennifer Clark, a counsel with the Brennan Center for Justice Democracy Program, who discusses the status of efforts to overturn voter suppression laws and the potential damage from organized voter intimidation tactics at the polls on Nov. 8. [Rush transcript.]

JENNIFER CLARK: We've seen a ton of lawsuits – many of them successful, actually – over the summer and into the fall. That have really pushed back against a wave of restrictive voting laws. I think some of the most high-profile ones have been pushback against strict photo ID laws that require voters to show one of very small number of IDs to vote. We've seen a court in Texas, in fact the 5th Circuit Court of Appeals, actually say that Texas had to make changes to its ID law because it was discriminatory against African American and Latino voters there. We saw a federal court in North Dakota say something similar about that state's strict law which actually disenfranchised the Native Americans there who were less likely to have access to photo IDs. We've seen a lawsuit in Wisconsin that's been going kind of back-and-forth and back-and-forth over both voter ID and some early voting restrictions. And we actually got a decision that created more early voting opportunities for voters there, finding that the law had been passed with the intent to make it harder for African Americans there to vote, because African Americans disproportionately in Wisconsin tend to use early voting opportunities.

We've also seen a monster of a lawsuit in North Carolina, because North Carolina passed an omnibus restrictive voting law in the wake of the Shelby County decision that kind of hobbled the Voting Rights Act and made it much easier for states to pass these kinds of discriminatory laws. And they passed a law that really hit all the notes of making it harder to vote. And there was a decision in the summer from federal court of appeals there saying that North Carolina's law was passed again, with the intent to make it harder for African Americans there to vote. And they actually wiped the entire law off the books. So we've seen a lot of litigation around these issues and a lot of it is going in a good direction for voters.

BETWEEN THE LINES: Jennifer, Donald Trump says that if he loses the election, it will be proof that the election was rigged around the country. He's also made a call out to his supporters to become citizen poll observers which, seems in "coded language" to try to intimidate voters of color, possibly Muslims, and certainly young people might be targeted by those supporters if they do show up at the polls. What are some of your concerns at the Brennan Center about this call for "ballot security?"

JENNIFER CLARK: So, it is very concerning to hear a call for voters to go and kind of police other voters at the polls. That has a very problematic history in our country that goes back to Jim Crow and earlier, where we have seen a lot of very zealous policing at the polls that actually at the end of day results in intimidation for voters and creates a very intimidating circumstance. You know, people who might have good intentions going down to the polls, if there's clearly been a lot of feelings and emotions are running very high around this election in particular, and things very quickly have a chance spiral and to cross the line from watching into intimidation. So we're very concerned about that. We think that's a real problem. And we have, on our website, have been putting a lot of information about what's actually legal and what crosses the line into intimidation and I would strongly encourage people to try to make sure that they watch out at their polling place, make sure that no one is around to intimidate them, or you know, showing up and walking in policy or military garb. I would encourage folks to call the Election Protection Hotline [(866-OUR-VOTE) or] if they see that kind of behavior going on at their polls.

BETWEEN THE LINES: Summarize for our audience a bit about what the Brennan Center's thinking is in some long-term remedies and reforms that will prevent these kind of blatant attempts to prevent certain groups of people from casting ballots. It seems like we're going backwards in so many ways. I know one of the things that the Brennan Center is advocating is rapid restoration of the Voting Rights Act. But maybe you could expand on that briefly for us.

JENNIFER CLARK: Of course. In 2013, the Supreme Court really hobbled the Voting Rights Act by striking down a part of it that required states that had a history of discrimination and voting at the polls to pre-clear some changes. And that law worked very well. And we have seen since it has been struck down that there has been a wave of restrictive voting laws that have come into place. So this idea that it wasn't working any more or wasn't doing the job it was supposed to – which seemed to be the Supreme Court's reasoning and opinion – and Chief Justice Robert's opinion – that's been proven false. And so, if you look for example at the overlay between states that have passed restrictive laws and states that were previously required to pre-clear their laws under this part of the Voting Rights Act that was struck down – it's a pretty high percentage. It's a pretty good match. So it was obviously doing its work.

And the Brennan Centers and others in the voting rights field are working very hard with Congress and with bipartisan support in Congress to try to get the Voting Rights Act restored, to update the coverage formula so that the states that have a recent history of discrimination and voting would have to pre-clear their laws again. And so, we could prevent years of litigation, which is really what we had to go through to get to this point to reach those victories I was talking about. We could prevent the years of litigation and the loss of votes throughout the course of the litigation if really, states had to make sure before they put them into place.

For more about challenges to voter suppression laws and methods to counter organized voter intimidation tactics, visit the Brennan Center for Democracy at

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