Tuesday Talk*: Who Will Protect The Voters?

There will almost certainly be accusations, if not legal battles, by Trump against election officials in various states and cities claiming that they violated the law by not denying putative citizens with names ending in vowels or swarthy complexions the right to vote. But there is a much more immediate concern that will arise next Tuesday, November 3rd, when the mass of Americans go to the polls to vote in the midterm elections.

The Trump administration said it would dispatch around 1,000 election monitors to polling places across the country. It’s important to remember that under the law, election monitors are entitled to observe polling places, but they cannot administer elections, determine voter eligibility or direct any election officials.

Former Knick and United States Senator from New Jersey Bill Bradley is almost right. They cannot legally do so, but that doesn’t mean they can’t physically try. What if a federal election observer directs a poll worker to check a person’s identification or not allow them to vote? What if that observer puts his hand on a putative voter’s arm and demands that he prove he’s a citizen? What if the observer pulls out his cellphone camera and takes a picture of the voter, informing him that he’s sending it to ICE agents for investigation?

State and local election officials may find themselves in a terrible bind. They are not supposed to take orders from the president or any federal agency. The law across all 50 states is clear that they must not obey illegal orders of any kind, including those issued by the federal government.

If they decide to comply with such illegal directions or instructions, election officials could face civil or criminal penalties. Under the law, they can be sued personally in civil court by anyone with standing and held responsible in court if they follow an improper order by the federal government about the administration of the election system, with sizable monetary damages as a possible result.

Poll workers tend to be older folks, some working as volunteers and others at minimum-wage temporary jobs where they feel that they’re trying to contribute to the system by working for free and fair elections. They don’t want to become a boldface name on the front page of the New York Times, a cause célèbre for boldly standing up to the threat, if not physical force, of a federal observer or agent. That’s not what they signed up for. That’s not what they were trained for.

But who will protect poll workers and voters from federal interference?

In an interview with Time magazine, Mr. Trump declined to rule out sending ICE agents to polling places. Three federal laws — including protections signed by Abraham Lincoln — prohibit federal troops and agents from interfering in elections. If Justice Department or ICE agents show up claiming emergency powers, election officials should say that none of their instructions will be obeyed without a court order signed by a judge. The “administrative warrants” issued by the Department of Homeland Security are not sufficient. Only an order with the John Hancock of a state or federal judge compels any action.

There are laws that prohibit the federal government from interfering in elections. Even if Attorney General Todd Blanche fails to grasp why ICE agents harassing, challenging, detaining and seizing people as they walk into the polling place might be a problem, citizens at risk of being stopped, detained, arrested, beaten or killed understand.

Of course, if a citizen who falls short of Trump’s preferred heritage refuses to comply with their command to drop to the ground, there will be trouble and it will be justified by claiming they resisted federal agents. Citizen or not, they could well end up in an African prison. But if the agents are present and issue orders, and the American citizen can’t do anything to defend himself, what recourse is there?

Will state and local officials call out their law enforcement to protect their citizens from illegal federal actions? Will the cops protect voters from observers and ICE agents? Will police use whatever force is necessary to repel the federal agents who would commit a crime by interfering with their state’s citizenry?

Will governors and mayors order them to do their job of protecting their citizens from crime, whether committed by criminals with or without a badge? If they do, will the police comply? And if the police comply, what will they do when a federal agent pulls his taser or gun and orders them to back away or else?

Senator Bradley is right that there are organizations ready, willing and able to address the legal proceeding that will come to the defense of election workers and voters. But that won’t fix the problem of citizens being denied their right to vote in the moment. Who will protect Americans on the ground one week from today from federal interference in the exercise of this fundamental right?

*Tuesday Talk rules apply.


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