Gitlin-Adam
Gitlin-Adam
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Voter Intimidation and Discrimination in the 2016 Election:<br />
Rhetoric and Reality<br />
<strong>Adam</strong> <strong>Gitlin</strong><br />
Counsel, Brennan Center for Justice at New York University School of Law<br />
Prepared for presentation at the IDC Conference on the US Presidential Election of 2016,<br />
January 2017. The author’s views are his own.<br />
Abstract<br />
Beginning in August of 2016, President-elect of the United States Donald Trump repeatedly<br />
claimed that the election would be “rigged” if he lost, and called for volunteers and law<br />
enforcement to come to the polls to “watch” the election. Using private citizens and law<br />
enforcement in such settings historically has led to illegal discrimination and intimidation. But<br />
Mr. Trump’s comments, coupled with aggressive lawsuits by Democratic Party lawyers to<br />
combat laws restricting voting rights, politicized the act of voting in a way rarely seen in<br />
America. What do the rhetoric and resulting behavior teach us about how we ought to treat<br />
voters? This paper offers a working definition of voter intimidation, reviews briefly the history<br />
of voter intimidation and discrimination at the polls in the United States, examines the immediate<br />
pre- and post-election results of certain 2016 efforts to politicize voting in America, and<br />
concludes with suggestions on how best to reduce the intimidation that can result from the<br />
politicization of the act of voting.
Introduction<br />
Voter intimidation took center stage in the United States’ 2016 presidential election. As a<br />
candidate, Donald Trump warned of voter fraud, and encouraged his supporters to go to precincts<br />
other than their own to “watch” voters in “other areas,” a phrase many interpreted as dog-whistle<br />
politics (Anderson 2016). He also took a permissive attitude towards violence by his supporters<br />
against his detractors. This set the stage for possible intimidation and discrimination against<br />
voters in the lead-up to, and on, Election Day.<br />
Intimidation of and discrimination against voters is hardly a new concept in the United<br />
States. Indeed, as discussed below, it dates to before the Founding. Yet it has not until now<br />
received top billing in a modern presidential campaign. In the wake of Mr. Trump’s repeated<br />
remarks, Democrats filed several lawsuits to prevent intimidation, and news reports conveyed<br />
fears of widespread voter intimidation on Election Day. While intimidation may not have<br />
occurred at the scale suggested, there was intimidation and there are lessons to be drawn from<br />
the election on how the nation treats its voters.<br />
This paper first discusses in broad terms the problem behind the research question, which<br />
may explain its lack of comprehensive study: assessing voter intimidation is difficult if we<br />
cannot agree on what intimidation is. After proposing a novel definition with a focus on<br />
subjective perceptions of intimidation, the paper discusses some salient historical examples of<br />
voter intimidation that confirm the importance of this subjective perspective. Next, the paper<br />
looks at the 2016 election, in which there was widespread media attention to, and concern about,<br />
voter intimidation, and squares that against what actually happened. The paper concludes with<br />
recommendations on how to limit intimidation.<br />
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Defining Voter Intimidation<br />
No comprehensive studies of voter intimidation exist, in all likelihood partly because<br />
there is no consensus on what counts as intimidation. The lack of a clear definition is not a<br />
merely theoretical concern; its practical consequence is under-enforcement of laws that proscribe<br />
intimidation, or at least confusion on Election Day, when many of those in charge of elections or<br />
deployed to observe them may have conflicting impressions of what the law allows (Hayward<br />
2007).<br />
One study, by the U.S. Election Assistance Commission, which is responsible for<br />
developing standards for election administration in the United States, reports a telling divide in<br />
views:<br />
Interviewees differed on what they believe constitutes actionable voter<br />
intimidation. Law enforcement and prosecutorial agencies tend to look to the<br />
criminal definitions of voter intimidation, which generally require some threat of<br />
physical or financial harm. On the other hand, voter rights advocates tended to point<br />
to activities such as challenger laws, voter identification laws, polling place<br />
locations, and distribution of voting machines as activities that can constitute voter<br />
intimidation. (Election Assistance Commission 2006)<br />
The quote is telling in part because of the context: The EAC is ostensibly bipartisan and<br />
independent. But multiple internal government investigations from the mid-2000s showed that at<br />
the time the study quoted was written, voting-rights enforcement at the Department of Justice<br />
was heavily politicized, with allegations that one political appointee went so far as to pressure<br />
the EAC not to release this report in its original state (Election Assistance Commission, Office of<br />
Inspector General 2008). Moreover, several current “voting rights advocates” interviewed for the<br />
report were in fact former enforcement officials. Thus, the purported dichotomy, with two groups<br />
having different perspectives, may obscure more nuanced views. Moreover, the study’s list of<br />
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consulted experts indicates its authors did not even speak with First Amendment scholars, who<br />
might also have cabined “intimidation” with rules on permissible electioneering, or Second<br />
Amendment advocates, who might have urged some accommodation of right-to-carry gun laws<br />
in spite of slight voter discomfort.<br />
Even if the authors had cast a wider net, the variation in viewpoints is understandable,<br />
because the focus is primarily legalistic. Some focus on requirements of acts like violence, which<br />
other laws already prohibit. Others point to legislatively enacted voting restrictions, which may<br />
be anti-voter on their own merits but in many cases would be better characterized as the result of<br />
policy disagreements. Neither approach accurately reflects the underlying norm.<br />
What drives the proscription of voter intimidation is the notion that the exercise of the<br />
right to vote should be, from the perspective of the voter, unfettered—lines should be short, the<br />
process should make sense, and there should be no outside impediment. This is why in almost all<br />
voter-intimidation statutes, state and federal, liability turns on whether the conduct threatens or<br />
coerces a voter in such a way that “interferes” with voting (Weiser and <strong>Gitlin</strong> 2016). These<br />
statutes implicitly recognize that voting often derives not only (or even necessarily mostly) from<br />
calm rational thought, but from “hot cognition”—increasingly, we recognize that voting turns on<br />
feelings (Lodge and Taber 2013, Pew Research Center 2016b). Intimidation and discrimination<br />
create roadblocks to an activity intended to be swift and simple, regardless of how much<br />
deliberation preceded exercise of the voter’s rights.<br />
Viewing aspects of voting as turning on feelings is consistent with contemporary efforts<br />
to reconceptualize what motivates voters. For example, recent research on why people vote has<br />
attempted to harness the teachings of field experiments in voter-mobilization methods, where<br />
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more personal communication methods (such as in-person canvassing) have been substantially<br />
more successful empirically than less personal methods (such as phone-banking or direct mail)<br />
(Rogers et al. 2012). One posited explanation for this difference is that greater social connection<br />
leads to greater empathy and more socially desirable behavior. These phenomena are based not<br />
on the appeal of particular policy statements, but on how voters subjectively feel about the act of<br />
voting. If this is true during a political campaign, it must be even truer at the moment of voting,<br />
when time for deliberation is shorter and external stimuli are greater, and where most reported<br />
voter intimidation occurs.<br />
These observations counsel a subjective view of voter intimidation—one in which a voter<br />
is intimidated if the voter feels that the conduct in question makes the voter less likely to vote for<br />
fear of retaliation by private or government actors for exercising the right to vote. That retaliation<br />
can take the form of physical abuse, threats of physical abuse, confinement (especially in the<br />
case of arrest), or strong abusive language.<br />
A working definition of voter intimidation should include the prospect of the<br />
concreteness of retaliation in light of the subjective nature of the problem. Doing so is also<br />
consistent with federal prosecutorial standards for voter intimidation offenses: “The goal of voter<br />
intimidation … is to deter or influence voting activity through threats to deprive voters of<br />
something they already have, such as jobs, government benefits, or, in extreme cases, their<br />
personal safety…. Intimidation … is amorphous and largely subjective in nature….” (Donsanto<br />
and Simmons 2007). A subjective standard may be broader than an objective one, which would<br />
attempt a one-size-fits-all approach of what reasonable people might find intimidating, but is<br />
consistent with Congress’ intention that federal anti-intimidation law be interpreted broadly<br />
(Cady and Glazer 2015).<br />
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The subjective approach also has several advantages from the perspective of judicial<br />
administrability. First, as with the expression of other fundamental rights, such as the right to<br />
privacy, the right to cast a vote unimpeded is necessarily somewhat nebulous, and it may be<br />
more intuitive first to ascertain how the voter perceives the facts, and then consider how the<br />
rights of others should be limited in recognition of the primacy of how voters feel in the exercise<br />
of the franchise.<br />
Second, increased focus on the voter avoids having the analysis turn as much on<br />
establishing intent, a difficulty in many intimidation cases. The courts have addressed the<br />
problem of showing scienter by giving greater weight to circumstantial evidence of intimidation,<br />
but this practice creates problems of its own (Swirsky 2002).<br />
Third, a subjective standard reduces the weight that should be assigned to the nexus<br />
between the act of intimidation and voting (Stringer 2008). This is another problem that courts<br />
have dealt with inadequately, such as in United States v. Harvey, where a court found an<br />
insufficiently direct threat in the eviction, employment termination, and other retaliation against<br />
African Americans who had just registered to vote.<br />
The danger with all subjective legal standards is over-enforcement, because a voter’s<br />
feelings are hard to second-guess. Some types of voter deception—such as, say, automated<br />
phone calls misleading voters about the date of the election, or internet materials providing false<br />
information about the manner of voting (Rustin-Paschal 2011)—may be dealt with better under<br />
common-law fraud rules or, as some have suggested, more targeted legislation (Daniels 2010).<br />
But for most other forms of intimidation, the better response to the over-enforcement<br />
concern, rather than reverting to an objective standard, is to recognize that at a certain point the<br />
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ights of others trump a particular voter’s feeling of intimidation (Leipold 1998). Where that<br />
tipping point is set will depend on the factual circumstances, but some examples below are<br />
instructive on where the rights of others must yield to a voter’s right to cast a ballot without<br />
interference.<br />
Voter Intimidation: A Brief History<br />
United States history is unfortunately replete with examples that have generated<br />
widespread agreement that whatever other rights the Constitution guarantees, it does not permit<br />
blatant efforts to deprive others of the franchise. Reviewing these examples under a subjective<br />
standard, however, reveals their overarching commonalities as forms of intimidation.<br />
Voter intimidation was at its worst after the Civil War, used as a means of suppressing<br />
political power among African Americans (Logan 1954), but it is a practice older than the United<br />
States. In the Colonial Era, when it was understood that only landed white men could vote in<br />
most of the colonies, intimidation of voters was nevertheless rampant (Campbell 2006). For<br />
example, in 1736, a full four decades before the American Revolution, a candidate who lost<br />
called in loans from men he knew had not supported him; many lost their property and were even<br />
sent to debtor’s prisons. These voters clearly felt intimidated, even after the election, such that<br />
the pre-election causal nexus often required under current law does not reflect the reality of the<br />
intimidation. And of course, no history of American electoral shenanigans would be complete<br />
without a mention of New York’s Tammany Hall political machine, which for years employed<br />
“thugs” to violently prevent voters from casting ballots. There can be no question that outright<br />
violence is intimidating, and no First Amendment protections apply to it.<br />
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The last century and half, however, has seen voter intimidation largely directed at racial<br />
minorities, and African Americans in particular, at times with direct involvement of law<br />
enforcement. Eric Foner’s indispensable tome on Reconstruction recounts how, for example, in<br />
1868, just after the Civil War, “[i]n the southwest Georgia village of Camilla, 400 armed whites,<br />
led by the local sheriff, opened fire on a black election parade, and then scoured the countryside<br />
for those who had fled, eventually killing and wounding more than a score of blacks” (Foner<br />
2002). After its establishment in 1870, much of the early workload of the Department of Justice<br />
involved protecting African Americans from violence, much of it connected to voter<br />
intimidation.<br />
Indeed, with every wave of African American empowerment, voter intimidation has<br />
reared its ugly head. The legislative history of the Voting Rights Act of 1965 reveals Congress’<br />
recognition that the exercise of voting rights by African Americans necessitated greater<br />
protections against voter intimidation than had existed to date, and which Congress provided in<br />
the form of Section 11(b) of that Act (Cady and Glazer 2015).<br />
But violence, as we have said, needs no subjective inquiry, and subtler forms of<br />
intimidation have also inhibited political participation. In 1934, for example, when celebrated<br />
muckraker and novelist Upton Sinclair ran for (and won) the Democratic party’s nomination for<br />
governor of California, anti-socialist forces attempted systematic challenges to his supporters’<br />
eligibility on Election Day. The California Supreme Court identified this conduct as a baseless<br />
intimidation tactic. And women have been intimidated at the polls since being granted the<br />
franchise, with reports, for example, that in one town in New York every woman who tried to<br />
vote in the 1918 election—the first in which women had the franchise—faced a challenge at the<br />
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polls (New York Times 1918). Blanket challenges, as scores of interviews in these cases and<br />
others confirm, have the potential to make voters feel intimidated.<br />
Coordinated and overt voter intimidation may seem less flagrant in the modern era, but<br />
now arises more often in the form of so-called “ballot security operations” (Weiser and<br />
Agraharkar 2012). These are coordinated efforts ostensibly aimed at preventing voter fraud, but<br />
that have been accused of being little more than pretext for discouraging voting through<br />
intimidation.<br />
Berry (1996) and others have documented some of the most striking examples of<br />
coordinated ballot-security operations, such as the 1981 Republican National Committee<br />
operation in New Jersey. During that year’s gubernatorial campaign, in the name of ensuring the<br />
election’s integrity and preventing voter fraud, the RNC hired a “Ballot Security Task Force” to<br />
challenge voters’ eligibility in areas that were predominantly populated by African American and<br />
Latino voters. This “Task Force” also deployed off-duty law enforcement officers to patrol<br />
racially targeted precincts, carrying firearms, and stopping and asking questions of voters while<br />
at polling places. As with most ballot-security operations, the evidence of fraud to justify the<br />
conduct was practically nonexistent. A court has continued to extend the resulting consent<br />
decree, which limits RNC Election Day activities, in response to repeated showings that it has<br />
violated the decree through ballot-security operations that are discriminatory and intimidating<br />
(Weiser and <strong>Gitlin</strong> 2016).<br />
More recently, the United States v. Nguyen case chronicles how in 2006, in a California<br />
congressional election, a professional mailing service connected to a candidate sent letters to<br />
roughly 14,000 newly registered voters with Hispanic surnames. The letters advised them in<br />
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Spanish that their personal information would be collected by a newly implemented government<br />
computer system, and that organizations that were “against immigration” might request<br />
information from this system.<br />
And in 2007, the Department of Justice took to trial an intimidation case on behalf of<br />
white voters against an African American, Democratic county official in Mississippi. The<br />
official, Ike Brown, had planned to use a list of only white voters to challenge their eligibility in<br />
a party primary. The court ruled against the government in United States v. Brown. [494 F. Supp.<br />
2d 440 (S.D. Miss. 2007)]. Notably, on appeal the Fifth Circuit Court of Appeals made special<br />
mention of the fact that, “[a]lthough no challenges were in fact brought, testimony revealed the<br />
effects of this list: one voter was so intimidated that she did not vote; another was intimidated to<br />
the point that she did not feel she could approach the polls alone.” [561 F.3d 420 2009]. This<br />
explicit focus on feelings illustrates courts’ willingness to discuss potential intimidation in<br />
subjective terms, even in a case that, because it deviated from the Department of Justice’s<br />
traditional focus on protecting the rights of racial-minority voters, was quite controversial.<br />
In sum, the United States has a long history of voter intimidation, and one in which<br />
discrimination on the basis of race and other legally protected characteristics has been an integral<br />
part. This connection also militates in favor of a subjective standard in a litigation context, as it<br />
may encourage empathy, whether or not a trier of fact shares the characteristics of the person<br />
claiming intimidation.<br />
What We Learned in 2016<br />
Intimidation in the 2016 election reflected the historic trend toward less obviously<br />
invidious collective intimidation, but also reflected some of the spirit of the campaign, which did<br />
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not specifically encourage collective action at the polls, and galvanized voters who recently had<br />
not been significantly politically involved.<br />
The Campaign Setting<br />
One 2016 factor was clearly out of the historical norm: In the lead-up to Election Day,<br />
one presidential candidate set a tone of suspicion around voter fraud and outright encouragement<br />
of violent. Donald Trump decried a “rigged” system—with the phrase seeming to encompass not<br />
only the electoral process but government generally. He urged voters to go and “watch” on<br />
Election Day in “other areas” besides their own precincts, and encouraged law enforcement to<br />
patrol the polls as well. He offered these lines most often in Pennsylvania, inspiring local<br />
politicians to try to pass legislation that would amend Pennsylvania’s poll-watcher law, which<br />
forbade poll watchers from serving outside their home county. When that failed, politicians sued<br />
to have the poll-watching restriction declared unconstitutional (Weigel 2016). Mr. Trump also<br />
used rallies to encourage violence against detractors, promising to pay supporters’ legal bills<br />
(Howell 2016). On his recent victory tour he even acknowledged his supporters were “vicious,<br />
violent” (Beckett 2016). But interestingly, in none of these situations did he encourage<br />
coordinated action.<br />
This combination of encouraged Election Day vigilance and permissive attitude toward<br />
violence without any particular organizing or training mandate, let alone a particular focus<br />
(beyond the phrase “other areas”) may have provided some Trump supporters with a greater<br />
feeling of justification in intimidating not just specific voters, but non-Trump supporters as a<br />
group. This created a space for voter intimidation along multiple vectors. Voting scholar Pamela<br />
Karlan (1993) has characterized voting as having both group and individual components. Like<br />
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the act it targets, intimidation can be multifaceted. It can be based on an assumption regarding<br />
the aggregate preferences of a group, directed at a particular individual making a declaratory act<br />
by participating in an election, or posed as a challenge toward a citizenry’s ongoing dialogue<br />
with government (a direct response to the “rigged” narrative).<br />
The election also came at the tail end of a campaign that saw increased interest in the<br />
election and mobilization of voters who were less connected to organized politics. These voters,<br />
particularly rural voters (Evich 2016), were becoming more interested at the same time that there<br />
has been a general decline in trust in American institutions of government, and a majority of<br />
Americans viewed Trump as having little or no respect for the “nation’s democratic institutions<br />
and traditions” (Pew Research Center 2016a). This may explain some reports of intimidation by<br />
individuals at the polls, some of it quite abusive, without connection to a broader, organized<br />
effort to intimidate voters; they became involved, in an irreverent way, without needing<br />
organization to facilitate their behavior.<br />
Coordinated Action<br />
Coordinated efforts of voter intimidation occurred in pockets, but the most publicized<br />
effort may have been the “Stop the Steal” organization run by Trump advisor Roger Stone. This<br />
organization’s stated plans were to use exit polling to ensure detection of any election fraud. But<br />
the organization targeted many cities that had demonstrated Democratic party leanings, rather<br />
than bellwether areas, as exit pollsters traditionally have (Kenski and Dreyer 1977). On a<br />
conference call the night before the election, Stop the Steal organizers emphasized that they did<br />
not want volunteers intimidating voters, in part because doing so could taint their results.<br />
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Nevertheless, Democrats sued to prevent Stop the Steal from carrying out its operations<br />
in several states. The suits failed in their primary objective, as courts found insufficient evidence<br />
of planned intimidation to enjoin Stop the Steal’s efforts. This may well have been the correct<br />
outcome: Democrats’ claims were speculative in many respects, and the legal complaints filed<br />
were essentially identical, in some instances without specifics that would warrant judicial<br />
intervention in the particular jurisdiction.<br />
But the lawsuits did serve one useful purpose: They required Democrats and Stop the<br />
Steal to articulate, and courts to analyze, what constitutes voter intimidation. Stop the Steal<br />
ultimately instructed its volunteers not to photograph voters at polling places (even though some<br />
states permit it), display badges identifying their political affiliation (even though most states<br />
permit so-called “passive” electioneering close to or even inside the polls), or interact with<br />
voters. Democrats requested courts to enjoin Stop the Steal representatives from monitoring<br />
polling places outside of normal poll watcher duties, loitering within 10 feet of polling places, or<br />
verbally harassing or photographing voters. Even the Supreme Court weighed in, sotto voce:<br />
while denying a last-minute request for intervention by Democrats, Justice Ruth Bader Ginsburg<br />
noted that state law already prohibits voter intimidation.<br />
More explicit guidance on intimidation came from several states. At least four issued<br />
entirely new guidance specific to this election. Pennsylvania’s Secretary of State published a<br />
“non-exhaustive list” of prohibited conduct, including “aggressive behavior inside or outside the<br />
polling place,” “[o]stentatious showing of weapons,” and “[u]sing raised voices, insulting<br />
offensive or threatening language, or making taunting chants inside the polling place.”<br />
(Pennsylvania Department of State 2016). However, all of this guidance came no earlier than<br />
October, and much of it was not explicitly reviewed in poll worker trainings.<br />
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These actions not only put would-be intimidators on notice, especially those who would<br />
be coordinating their actions and perhaps likelier to be on the lookout for state guidance, but also<br />
increased common understanding of what sorts of behavior was outside acceptable bounds.<br />
Reported Intimidation<br />
The 2016 election saw more reported events, often with a discriminatory component, than<br />
the 2012 election. By one estimate there was as much as a fivefold increase in the number of<br />
incidents reported, in three times as many states (<strong>Gitlin</strong> 2017). The nonpartisan Election<br />
Protection hotline, the largest operation of its kind, received over 4,000 calls on Election Day<br />
complaining of voter intimidation and vote suppression in the first few hours of voting, more<br />
than half of them from Pennsylvania (Neuhauser 2016). The author of this paper supervised the<br />
Election Protection call center receiving calls from Pennsylvania, and can attest to having<br />
reviewed numerous complaints of private citizens and election officials alike making voters<br />
uncomfortable through words or deeds.<br />
While there were fewer instances of reported intimidation than many news outlets<br />
predicted, the increase may have reflected the rhetoric of the campaign—with greater suspicion<br />
of others, and greater acceptance of violence, by individual voters. Among other troubling<br />
events:<br />
• A black church in Mississippi was found burned, with the phrase “Vote Trump”<br />
painted on its side (Green 2016b).<br />
• In one Tennessee county, African American voters faced long lines and claimed<br />
to feel harassed by questions regarding their voter ID and residency—questions<br />
that, according to reports, were not posed to white voters. (Sher 2016).<br />
• Similarly, in Michigan, two women wearing hijabs were pulled out of line and<br />
questioned by someone who was not a poll worker. (Damron 2016).<br />
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• In Nevada, there were reports of a partisan standing outside an early vote location<br />
harassing any voter who admitted not planning to vote for the partisan’s preferred<br />
candidate. (Green 2016a).<br />
• Outside a Texas polling place, police questioned but ultimately released a man<br />
with a gun who was sitting next to a sign that read “FAGGOTS VOTE<br />
DEMOCRAT.” (Kircher 2016).<br />
All of these events, subject to further factual investigation, could have generated subjective<br />
feelings of intimidation.<br />
The intimidation seen in the 2016 election also highlights the importance of recognizing<br />
where other rights must yield to voters’ feeling safe in casting their ballots. For example, in<br />
Loudoun County, Virginia, a man stood outside an early-voting location with a gun, encouraging<br />
voters to cast their ballots for Trump. When a voter complained, a local election official<br />
explained there was nothing he could do, because the man was outside the state-mandated buffer<br />
zone, which prohibits electioneering within 40 feet of the polls. But the problem was not an<br />
electioneering violation; the problem was squaring voter intimidation with gun-carrying rights.<br />
In such a situation, a voter may understandably feel subjective intimidation, to which Second<br />
Amendment rights likely must yield because of the voting context.<br />
Yet why did we see less overall intimidation than media reports might have led us to<br />
expect? Certainly, there is a pecuniary incentive for the press to sensationalize. Also, the stateissued<br />
guidance on intimidation and polling-place conduct may have worked. A less obvious<br />
reason may be that when voters arrived at their precincts, they did not see the fraud they feared,<br />
and therefore felt no need to act. This would be consistent with survey findings that voters are<br />
least concerned with the integrity of voting at the most local levels—it is the national vote that<br />
most evokes their concerns about fraud (Sances and Stewart III 2015).<br />
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That actual voter intimidation did not occur at the levels expected does not mean the<br />
specter of voter intimidation had no effect. Some voters may not have voted for fear of the hassle<br />
associated with intimidation—that was certainly a motivating factor for abstention from the polls<br />
by African Americans for years after the Civil War (Guinier 1998). And even if they were not<br />
deterred, voters were politicized through intimidation rhetoric, whether it came in the form of<br />
rallies held by the president-elect, lawsuits brought by Democratic operatives, or the media.<br />
That, for many, may have been one in a long line of actions exacerbating their distaste for<br />
politics, extending that negative association to voting.<br />
Conclusions and Recommendations<br />
Rhetoric and legal actions may not have created massive amounts of voter intimidation in<br />
the 2016 election, but they nevertheless offer lessons. Most broadly, as we are potentially at the<br />
precipice of an era in which coordinated voter intimidation will be more subtle, and more voterintimidation<br />
events are perpetrated by individuals acting alone, potentially egged on by<br />
politicians, all those involved in the electoral process must be prepared to think differently about<br />
how they treat voters.<br />
First, voter intimidation requires a clear definition to create norms against it and to<br />
encourage protection of voters, but actual findings of intimidation should be based on subjective<br />
inquiries. Clear rules are essential because otherwise a state risks a host of election-day problems<br />
with non-specialists interpreting for themselves what counts as intimidation, and subjective<br />
inquiries reflect the realities of voting, enhance administrability, and increase the probability of<br />
just outcomes.<br />
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Second, states and voter-protection groups must do their part and educate voters,<br />
volunteers, and poll workers on the civics underlying voting and the dangers of intimidation.<br />
They must take these actions earlier in the elections process than many did in 2016, and ensure<br />
they are taking into account technological changes that older laws may not explicitly cover—for<br />
example, with the advent of cameras in smartphones, the importance of preventing intimidation<br />
by photography of voters has only grown. On election-day, election officials must enforce<br />
electioneering restrictions vigilantly (Woodruff II 2011).<br />
Third, politicians should be careful in how they treat voters. Bluster on the stump is par<br />
for the course in American politics, but incitement to violence has long been recognized as<br />
beyond the bounds of the First Amendment, and wittingly or not, such rhetoric in combination<br />
with fomenting fears of voter fraud can encourage intimidating behavior. Lawsuits with limited<br />
factual bases also risk turning voters into game-pieces in the national discourse on voting, and<br />
may even lead to a “crying wolf” result, with less protection provided for voters. Together they<br />
risk debasing long-term civic engagement as sullied by politics. The better course for political<br />
actors may be to refrain from this kind of behavior, to encourage order at the polls, and to focus<br />
instead on increasing turnout.<br />
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References<br />
Anderson, Meg. “Trump: I’ll Only Lose with ‘Cheating,’ Asks Supporters To Watch Polling<br />
Places.” NPR, Aug. 13, 2016. http://www.npr.org/2016/08/13/489889496/trump-calls-tostake-out-polling-places<br />
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