As the end of the 2020 election draws near, the potential threat of disruption at the polls on the part of so-called militia groups is intensifying. And one local group is trying to make sure that, across the country, voters know their rights and law enforcement knows their responsibilities.
The , based at the Georgetown University Law School in D.C., has published a regarding what is and isn鈥檛 allowed with regard to gathering inside and outside voting sites.
On Wednesday, they published .
Each state has different laws, but there are three common threads: Private militias are not legal; a group doesn鈥檛 have to call itself a militia to be acting as one; and intimidation is in the eye of the voter.
鈥淭he only lawful militia is a state militia, and that’s based on historic text of the Constitution and Supreme Court interpretations,鈥� , a former acting assistant attorney general for national security and legal director of the institute, said at a briefing Monday.
Local reaction
After the first presidential debate, at which President Trump has been telling supporters to 鈥済o into the polls and watch very carefully,鈥� the attorneys general of D.C., Maryland and Virginia issued statements and opinions reminding residents that there is a process for people who want to become official poll watchers, and that no one has the right to simply turn up at a voting site and assume the right to decide whether things look legit.
鈥淔ederal law prohibits the military and armed federal law enforcement officers from being present at a poll site unless it is necessary to 鈥榬epel armed enemies of the United States,鈥欌�� said D.C. Attorney General Karl Racine in a statement, adding that 鈥淒istrict law also expressly prohibits anyone from interfering with voter registration or voting itself.”
Virginia鈥檚 Mark Herring said that state law prohibits anyone from conducting themselves 鈥渋n a noisy or riotous manner at or about the polls so as to disturb the election.鈥�
It also bans 鈥�’threats, bribery, or other means in violation of the election laws鈥� to 鈥榓ttempt[] to influence any person in giving his vote or ballot or . . . deter him from voting.鈥欌��
And Maryland鈥檚 Brian Frosh said: 鈥淰oter harassment and intimidation is illegal and will not be tolerated in Maryland. Anyone attempting to violate these laws will be held accountable and prosecuted.鈥�
He gave examples of intimidation that included spreading misinformation about voting and voter fraud; confronting voters while wearing 鈥渕ilitary-style鈥� or 鈥渙fficial-looking鈥� uniforms; following voters to, from or within a polling place; writing down voters鈥� license plates; and 鈥渁ggressively鈥� questioning voters鈥� qualifications.
鈥榃e are starting to see more鈥�
McCord said some groups are taking Trump鈥檚 words seriously.
鈥淲e are starting to see more of that type of chatter鈥� from national and local groups about turning out for Election Day. 鈥淎nd they’ve also been talking about all the musters and trainings that they’re undergoing right now in preparation for the post-Election Day period.鈥�
While there are such groups on the left, McCord said, there are 鈥渇ewer than there are on the far right.鈥� They’ve also seen 鈥渟traight-up anarchist groups that don’t easily fall on the left or right.鈥�
Still, she specifies, 鈥渢o be honest, it’s made much more difficult when we can’t rely on the president to denounce this type of activity.鈥�
She added, 鈥淭here are groups that are going to self-activate in the streets. And so this is one of the things that we’re trying to help local jurisdictions prepare for by making sure that at all levels, people are aware of the prohibitions on this activity. This is not constitutional, and it’s not protected by the Second Amendment.鈥�
What makes a militia?
, of the institute, pointed out that it鈥檚 important to remember that the question of whether a group does not have to declare itself a private militia to be acting as one.
鈥淚t’s not that it’s whether you go by a certain title or you name your militia or anything like that,鈥� Marshak said.
鈥淚t’s that you’re acting as a military group 鈥� you’re exerting the impression that you can use force to compel people to act, that you are acting in a coordinated fashion, those kinds of things would be not permitted.鈥�
Supreme Court decisions on the matter of private militias date back to 1886, Marshak said. She added that while the 2008 case D.C. v. Heller established the right of individuals to bear arms despite the appearance of the phrase 鈥渨ell-regulated militia鈥� in the Second Amendment, even in that case the state鈥檚 ability to ban people from acting as a militia 鈥� to 鈥渁ssociate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law鈥� 鈥� was explicitly unchallenged.
Even though she鈥檚 sounding a warning, McCord said, 鈥淚 don’t want to be apocalyptic about this. I think that it’s likely that what we would see would be isolated incidents in certain jurisdictions.鈥�
Still, one or two incidents can get magnified on social media, 鈥渁nd it’s sort of makes it look like it’s a bigger, more nationwide problem than it is. I mean, we certainly saw this after George Floyd was killed, when, even though by far the vast majority of the racial justice protests have been entirely peaceful, it just takes a few to have acts of violence that goes viral. And then people have the impression that we have violence across the country.鈥�
What to look for
If you see any group of people looking threatening at a polling place, the institute advises that first you document what you鈥檙e seeing, addressing these specific questions:
-
-
- What are they doing?
- What are they wearing?
- Are they carrying firearms? If so, what type? If not, are they carrying other types of weapons?
- Are they wearing insignia? If so, what does it say or look like?
- Are they bearing signs or flags?
- Do they seem to be patrolling like a law enforcement officer might do?
- Do they seem to be coordinating their actions?
- Do they have a leader?
- Are they stopping or talking to people outside of their group?
- Do they appear to be provoking or threatening violence? If so, what are they doing specifically?
- Are people turning away from the polling station after seeing or speaking with them?
-
What to do
In Virginia
If you see voter intimidation at a polling place, Herring鈥檚 office wants you to call them at 800-552-9745 or visit .
In Maryland
Frosh鈥檚 office said that 鈥淚f you believe that you have witnessed or experienced voter intimidation, or that such conduct is imminent, please call the at 443-961-2830 or toll free at 833-282-0960, or by email at electionswork@oag.state.md.us.鈥�
