The Justice Department issued a statement cautioning that certain activities at polling places (including intimidating forms of poll monitoring) could violate federal voting rights laws.
The Justice Department did not say that legitimately documenting or reporting cases of voter fraud is now itself a criminal activity.
On 24 October 2016, news site Breitbart posted an article reporting that the Department of Justice had warned that polling place vigilantes monitoring for potential fraud could face consequences under federal law:
Upon first blush, what may appear to be a middling warning that voter fraud and abuse will not be tolerated by federal law enforcement also casts a shadow over various lawful election activities with broad language apparently intended to caution individuals from performing their duties.
A statement initially circulated by various U.S. Attorney’s offices outline several forms of election crimes to include “buying and selling votes, impersonating voters,” and others, yet offers a blanket warning to individuals that may hope to disrupt and document similar plots that those actions may, too, “violate federal voting rights law.” The DOJ comment specifically counsels against communicating with voters and “challenging them”, plus the capture of still and video images is also mentioned. The statement does not grant the varying distinctions in which states may allow communication between voters and poll watchers, nor does the DOJ note that some observers in specific states do indeed have the power to challenge would-be voters based on documented ineligibility. As a point of fact, some states—Missouri as an example—specifically call election observers “challengers”, according to local statutes.
That story prompted the Conservative Daily Post blog to post a dire-sounding article:
Voter fraud is one of the ways that the Democrats plan to cheat in this election. They have shown that they are willing to cheat since that was how they defeated Bernie Sanders in the primary elections. And now they have the support of President Obama and Loretta Lynch’s Department of Justice.
A press release from the Department of Justice says that people who want to prevent voter fraud might be violating voter intimidation laws. These people that the department just threatened might be serving as poll watchers just to make sure that there is nothing going on with the votes.
The statement referenced in both articles is a 24 October 2016 release by the Department of Justice outlining the agency's role in "election fraud, voter intimidation, and discrimination at the polls, and combating these violations" on Election Day:
Federal law protects against such crimes as intimidating or bribing voters, buying and selling votes, impersonating voters, altering vote tallies, stuffing ballot boxes, and marking ballots for voters against their wishes or without their input. It also contains special protections for the rights of voters and provides that they can vote free from acts that intimidate or harass them. For example, actions of persons designed to interrupt or intimidate voters at polling places by questioning or challenging them, or by photographing or videotaping them, under the pretext that these are actions to uncover illegal voting may violate federal voting rights law. Further, federal law protects the right of voters to mark their own ballot or to be assisted by a person of their choice.
According to federal law:
Whoever intimidates, threatens, coerces, or attempts to intimidate, threaten, or coerce, any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose, or of causing such other person to vote for, or not to vote for, any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner, at any election held solely or in part for the purpose of electing such candidate, shall be fined under this title or imprisoned not more than one year, or both.
The statement appeared not long after Republican presidential nominee Donald Trump began to claim that the election would be rigged in favor of his Democratic opponent, Hillary Clinton. On 18 October 2016, during a speech in Grand Junction, Colorado, Trump instructed his supporters to "watch" polling activities in certain cities:
We've just begun to fight. They even want to try and rig the polling booths where so many cities are corrupt and voter fraud is all-too-common... Take a look at St. Louis. Take a look at Philadelphia. Take a look at Chicago... Look, look, if nothing else, people are going to be watching on November 8. Watch Philadelphia. Watch St. Louis. Watch Chicago, watch Chicago. Watch so many other places.
Sean Young, senior staff attorney for the American Civil Liberties Union's Voting Rights project, told us that there is no "one-size-fits-all test" for what constitutes voter intimidation, and laws vary from state to state as to what citizens are permitted to legally do if they believe a person is not qualified to vote. However, Young said challenging people on their right to vote based on factors like whether or not they speak English, what neighborhood they come from, or the color of their skin could easily cross the line into voter intimidation:
Challenges are generally permitted, but if they’re done in an aggressive or hostile way they could qualify as voter intimidation. Photographing and taking video of voters can certainly cross the line into voter intimidation. The right to vote is precious but in many ways it's private -- voters shouldn’t feel like they’re subject to some kind of heightened scrutiny just for exercising their right to vote.
One example of a gray area could be in states with open-carry laws, he said. While some states prohibit firearms in polling places, others do not have laws against it:
If someone is displaying fire arms in an intimidating manner and kind of patrolling the lines, that could cross the line into voter intimidation as well.
The DOJ release cautioned that the activities listed "may" violate federal laws. It did not say legitimate efforts to block voting fraud (and within the confines of state laws) are now illegal.