Many organizations have produced guidance for law enforcement agencies about situations they are likely to face in the period leading up to Election Day, on Election Day, and possibly in the days that follow. This guidance includes state-by-state information about the laws governing certain situations and police legal authorities.  The presence of armed individuals at polling locations and what constitutes voter intimidation are two key issues addressed by these resources.

PERF has compiled a number of these resources below, along with excerpts of what they provide on key issues.  Everything below that is underlined is a link to a resource.

SOURCE:  INSTITUTE FOR CONSTITUTIONAL ADVOCACY AND PROTECTION (ICAP), GEORGETOWN UNIVERSITY LAW CENTER

• State Fact Sheets – ICAP has created fact sheets for all 50 states explaining the laws barring unauthorized private militia groups and what to do if groups of armed individuals are near a polling place or voter registration drive.
• Fact Sheet: Protecting Against Voter Intimidation
• Actions Law Enforcement Can Take to Address and Prevent Voter Intimidation
• Fact Sheet: Video Recording In or Near Polling Places

Following are excerpts from the ICAP resources:

Federal law prohibits voter intimidation.   The right of each voter to cast his or her ballot free from intimidation or coercion is a foundational principle of a free and democratic society. 

Every state also separately prohibits interference with voters and/or voter intimidation.

What does voter intimidation consist of?   Here are some examples of conduct near polling sites that likely would constitute illegal voter intimidation:

• Violent behavior inside or outside the polling site
• Brandishing firearms
• Disrupting voting lines or blocking the entrance to a polling place
• Following voters to or from the polling place
• Verbal threats of violence
• Spreading false information about voting requirements
• Aggressively approaching voters’ vehicles or writing down their license plate numbers.

Are guns permitted at polling places?    Sometimes. As the Giffords Law Center explains, Arizona, California, Florida, Georgia, Louisiana, Texas, and the District of Columbia “explicitly prohibit guns at polling locations,” while Mississippi, Missouri, Nebraska, and South Carolina “prohibit concealed firearms at the polls.”

Guns may also be prohibited when polling locations are in K–12 schools and other property where firearms are not permitted.

Even where guns are not explicitly prohibited, they may not be used to intimidate voters.

What can police do if armed individuals or groups are near polling places?

Police may approach an armed individual or group near a line of voters at a polling place and ask, “Why are you here?”

-- If the answer is “to protect against voter fraud,” “to enforce the law,” or a similar response, police may ask the individual or group to stop the activity, because armed private militias are not authorized under state law, are not protected by the Second Amendment, and have no authority to engage in the functions of law enforcement.

-- If the answer is “to check voters’ qualifications” or a similar response, police may ask the individual or group to stop the activity. Although state laws vary as to who is allowed to challenge a voter’s qualifications and how, openly armed individuals or groups do not have authority to intimidate voters by making direct challenges to voters’ qualifications outside a polling place.

-- If the answer is “to exercise my First and Second Amendment rights,” police may ask the individual or group to put away their firearms or move away from the line of voters because their openly armed presence likely would be intimidating to voters.

Do police officers need to turn off their body cameras when responding to incidents at polling places?

No. Unless internal departmental regulations or guidelines specifically prohibit officers from recording activities in or around a polling place, officers should keep their body cameras on when responding to incidents of voter-intimidation (or other unlawful activity) at the polls, just as they would when responding to any other situation.

Although some states prohibit private citizens from using recording devices at the polls, those prohibitions should not be construed to bar on-duty law enforcement officers from using their body cameras in or around the polls.

Can private citizens record incidents of voter intimidation or harassment that they observe at the polls?

It depends. Laws governing the use of recording devices inside the polls vary widely from state to state.

In some states, voters are expressly barred by statute from recording other people at the polls.

Many states do not explicitly prohibit voters from using recording devices at the polls, but instead leave it to the discretion of polling place officials to determine whether recording may be permissible. In these jurisdictions, voters are often free to use recording devices, as long as they do so in a manner that complies with other election laws and is not meant to harass or intimidate other voters.

SOURCE:  VOTER PROTECTION PROGRAM

This 3-page document was prepared collaboratively by the Voter Protection Program, the Institute for Constitutional Advocacy and Protection at Georgetown Law, 21CP Solutions, and the Crime and Justice Institute.

It provides guidance about what police can do to recognize and respond to voter intimidation and the presence of firearms near polling places.

• Empowering Democracy: What Police Need to Know at the Polls

SOURCE:  NATIONAL POLICE FOUNDATION (NPF)

Policing in a Time of Elections – The National Police Foundation has developed resources to address some of the most critical issues police leaders will face while providing public safety at polling locations.

Legislative information for each state:  NPF, working in partnership with the National Conference of State Legislatures, is providing detailed information for each state, including key language from pertinent state statutes, about election laws governing the following issues:

• Polling Place Locations
• Consolidated Polling Places and Vote Centers
• Polling Place Hours
• Establishing Polling Places
• Guns in Polling Places
• The Role of Law Enforcement at Polling Places

The NPF “Policing in a Time of Elections” website also provides guidance on the following issues:

Communications

• Talking Points for Law Enforcement Executives When Engaging the Media
• Outreach to the Community and Its Formal and Informal Leaders in Advance of Election Day
• Sample Social Media Content

Preparation

• Preparing for Public Communications
• 9-1-1 Call Taking and Dispatching on Election Day
• Police Officer and Field Supervisor Duties on Election Day

Procedural Guidance

• Firearms and Open Carry at and Near Polling Locations
• Election Day as a Planned Event: Use of Incident Management System

SOURCE:  ANTI-DEFAMATION LEAGUE (ADL)

• Countering Election-Motivated Violent Extremism in 2020 and Beyond: ADL’s Practical Guide for State and Local Governments (2-page summary)

Excerpts:

The 2020 Presidential Election threatens to catalyze and exacerbate politically-motivated violent extremism already on the rise in the United States. The potential for violent conflict associated with the election is high, both during voting and in the weeks and months following Election Day.

Because states and localities administer elections and oversee state and local law enforcement, they must be ready with strategies to identify, prevent, and counter violent extremism associated with the 2020 election. They will grapple with this challenge in the run-up to Election Day, on Election Day, and likely for at least several weeks or even months following the election.

This Anti-Defamation League (ADL) report is designed to provide state and local governments with practical tools, strategies, and concepts to do just that. The report also outlines state laws, local ordinances, and law enforcement strategies that local governments may use to combat violent extremism, as well as creative ways to prevent individuals from choosing violence in the first place.

SOURCE: CRIME AND JUSTICE INSTITUTE 

Preparing for the 2020 Election – A framework for public safety agencies to advance planning for the election and post-election period.

Steps to take on Election Day:

• Publicly communicate expectations around supporting safe in-person voting for all eligible voters in the community.
• Be prepared to receive communication from election officials, poll workers, poll watchers, and community members.
• Coordinate and strategize with stakeholders to keep different groups separate from each other.
• Establish a Unified Command Center and operations room with community stakeholders.
• Include trusted objective community observer(s) in decision making.
• Execute communications plan to monitor social media and inform the community.

SOURCE: THE POLICING PROJECT AT NYU SCHOOL OF LAW

Policing Protests to Protect Constitutional Rights and Public Safety – The Policing Project’s new guidance provides an overview of how to police demonstrations to protect public safety and democratic freedoms. This information should be helpful to police executives during Election season and throughout the year.

Key Takeaways:

• The actions of police at demonstrations should be guided by a written policy that emphasizes free expression, public safety, and de-escalation. Officers should be trained on their role as facilitators of peaceful demonstrations.
• An unnecessarily militarized presence or aggressive response should be avoided, and the level of engagement always should be in proportion to the actual – not assumed or forecasted –  conditions on the ground.
• Policing agencies should communicate transparently with the public both during and after the event. This includes facilitating the work of journalists and legal observers, and engaging in comprehensive after-action review that includes protestor feedback for large demonstrations or those that resulted in use of force. 

The PERF Critical Issues Report is part of the Critical Issues in Policing project, supported by the Motorola Solutions Foundation.

PERF also is grateful to the Howard G. Buffett Foundation for supporting this work.