Bottom line up front: Feds at polling places are considered observers, and if they don’t follow the rules observers are required to follow they can be removed or arrested if they refuse to leave. Read on for more.
On Thursday, the Boston Election Department held a poll-worker briefing on Zoom. I think it was designated as an optional briefing rather than training so they wouldn’t have to pay us for attending.
I think this briefing happened for two reasons:
- Poll-workers are worried about Feds showing up on Election Day and have been expressing that to the Election Department.
- What the Election Department wants poll-workers to do if Feds show up has changed slightly since we did our training.
My interpretation of the briefing is that we were essentially told two new things:
- We should treat Federal agents as observers and expect them to follow all the observer rules.
- The Boston Police Department is instructing officers doing poll duty that they are authorized by existing law to remove, at the request of the warden, any observer who refuses to follow the rules.
What’s an observer?
State and Federal law allow only these people to be present inside a polling location while the polls are open on election day:
- voters in the process of casting their votes
- people accompanying voters to assist them
- children of voters accompanying their parents (yes, this is explicitly mentioned in state law)
- election workers
- translators managed by the Election Department
- police offers doing poll duty
- observers
Anyone who isn’t in the first six categories is classified as an observer. Anyone (including a Federal agent!) is allowed to observe in a polling location as long as they follow the rules.
According to the Massachusetts Secretary of State, observers have the right to:
- Watch the voting or counting process from outside the voting area
- Use electronics silently
- Mark their own voting lists to track those who have voted or which ballots have been counted
- Stand close enough to the check-in table to hear names and addresses
- Challenge a voter’s ballot for legal cause
- Take photos of the room or activities
- Take silent video of the location and voting process
- Request the count on the ballot box at reasonable intervals
- Speak to the Warden if any issues arise
Observers may not:
- Speak to any voters inside the voting location
- Communicate with voters in writing, through signage or other means
- Address questions or concerns to anyone except the Warden or local election official
- Wear or display anything intended to aid or defeat a candidate or question on the ballot
- Speak on the phone inside the voting location
- Record audio within the polling place
- Challenge ballots with intent to intimidate or determine for whom someone is voting
- Carry a firearm, unless actively on duty as a law enforcement officer
- Use electronics that are not silenced
- Use public power sources in the polling location for charging devices
What’s this about “watching the voting or counting process”?
Regarding “Watch the voting or counting process from outside the voting area,” every polling place is supposed to have a specific area designated for this purpose. Our polling place, a school cafetorium, has never had an observer show up in the five years I’ve been a poll-worker, and I also don’t recall there being an observer in any the ~25 prior years I voted there, so I’m not actually sure where our observer area is, but the only space I think is practical to use for it is the stage behind the check-in tables. If I’m right then it’s going to be interesting to see how things shake out if observers show up and need to be put somewhere, because the curtain is usually closed on election day and there’s usually a lot of junk piled all over on the stage. I suppose we’ll just have to open the curtain and the observers will have to do the best they can to find a place on the stage. We are not, as far as I know, required to provide them with chairs. 🤷
What about Feds outside the polling place?
My biggest concern is actually something that was not addressed by the briefing: what happens if armed Federal agents station themselves outside a polling place to intimidate “the wrong kind of people” from voting? Although there is a law about not campaigning within 150 feet of a polling place entrance, that law doesn’t apply to people just hanging around and not saying anything for or against a particular candidat or issue, so I don’t think we would legally do anything about ICE goons making a show of force outside the doors, unless they positions themselves in such a way that they are physically preventing people from entering.
Voter intimidation is against state law, and obviously everyone knows the only purpose of heavily armed law enforcement officers hanging around outside polling places is intimidation, but “everyone knows” is not the same as “it’s spelled out in black and white in state law,” so I honestly don’t know what we’re supposed to do if this happens, other than calling the Election Department poll-worker hotline and asking for their guidance.
What about challenge abuse?
My second biggest concern is that observers will show up and start challenging the ballots of anyone who isn’t white or doesn’t speak English with an American accent. The legitimate reasons for challenging a ballot in Massachusetts are:
- The voter is inactive (has not voted or responded to the town census in several years) and cannot present ID or paperwork verifying they still live at their registered voting address.
- The voter is not who they claim to be.
- The voter does not live where they claim to live.
- The voter is not a U.S. citizen.
- The voter is under 18.
- The voter has already voted in this election.
The first reason listed here can only be used by poll-workers, but anyone can challenge a ballot for any of the other reasons listed above, and they are not legally required to show any proof to justify their challenge, and the poll-workers are not allowed to adjudicate the validity of the challenge.
Challenged ballots do get counted, but they get additional information written on the back of them, including the name and address of the voter, which means a challenged ballot loses its secrecy, which is why challenging ballots is a voter intimidation strategy.
Furthermore, every challenged ballot requires paperwork to be filled out by the voter, warden, and clerk, and depending on how capable the voter is, it can easily take ten minutes or more to handle one challenged ballot. This is why another strategy that people who want to disrupt elections sometimes use is to challenge every ballot. That has happened in the past in Massachusetts.
We’ve been told that if we observe challenge abuse we are required to handle the challenges properly and also call the poll-worker hotline and tell them what’s going on, and they will advise us on how to proceed. I hope they have plans for how to deal with this, but I don’t know what they are.
Can challenge abuse delay election results?
One thing that’s unclear to me is whether a having a ton of challenged ballots will delay election results. It’s possible that the Election Department is allowed to treat challenged ballots like write-in ballots, i.e., they’re not actually required to do anything about them unless there are enough challenged ballots that rejecting some of them could possibly change the outcome of the election.
But it’s also possible that the Election Department may be required to research and make determinations about all the challenged ballots, and remove the votes of rejected ballots from the results, before they can certify the results.
The former would obviously be better than the latter, but even if that’s the case, organized challenge abuse spread across the entire city could result in enough challenged ballots to cause a significant delay in announcing the results. And, of course, if that happens then Trump will claim that something nefarious is going on and use it to call into question the results of the election.
