Next month’s presidential election will be the first in more than 50 years that the federal government won’t send special observers to monitor elections in states with histories of discriminatory voting practices.
After the Supreme Court’s 2013 decision in Shelby County v. Holder weakened a core provision of the Voting Rights Act of 1965, the U.S. Department of Justice could send such observers only where authorized by court orders.
Because of that requirement, the department will send a smaller number of staff attorneys and other personnel to monitor elections next month in roughly half the states. Unlike the special observers, the department staffers won’t have the authority to view activity inside polling places and locations where votes are tallied unless local officials approve.
That potential loss of access to voting operations is causing concern among civil- and voting-rights activists about the integrity of elections.
“Not having that seat on the front lines creates a disadvantage,” said Kristen Clarke, the president and executive director of the Lawyers’ Committee for Civil Rights Under Law. “I think you need to be inside the polling sites shoulder to shoulder with poll workers and observing carefully every aspect of the process to ensure all voters are treated fairly.”
Republican presidential nominee Donald Trump asked supporters to monitor polling places as “Trump election observers” to “stop crooked Hillary from rigging this election,” according to his website.
Given Trump’s talk about voter fraud, some fear that the presence of untrained, partisan Trump observers could lead to voter intimidation.
Federal observers “watch the election process, to collect evidence, to deter wrongdoing, to defuse tension and to promote compliance” with federal law, Vanita Gupta, head of the civil rights division at the Justice Department, said in a recent speech. They also look for different treatment of voters based on race and whether materials and assistance are provided for non-English speakers and voters with disabilities.
The Voting Rights Act allowed the attorney general to send observers to nine states with persistent histories of widespread voting discrimination if there were “meritorious complaints from residents, elected officials or civic participation organizations” that efforts to deny or hinder the right to vote “on account of race or color or (membership in a minority language group) are likely to occur.”
In 11 states, 153 counties have been certified for federal observers since 1965. Mississippi’s 51 certified counties lead all states. Georgia is next, with 29 of its 159 counties — about 18 percent — authorized for federal monitors at least once since 1965.
In July 2012, observers were sent to monitor elections in Randolph and Washington counties in Georgia. They also monitored the 2012 general election in Randolph County.
In December 2009 federal observers monitored the runoff election in Union Point, Ga.
A government brief in the Shelby case revealed that in 1990, observers monitored a special election in Pike County, Ga., after the original election was blocked because the city conducted an illegal after-hours voter registration session for whites only.
“It’s rational to think that the places that have had the worst histories of discrimination — and I don’t mean ancient history, I mean recent histories of discrimination — are going to continue to be the hot spots. We know about Mississippi. We know about Georgia,” said Dale Ho, who heads the Voting Rights Project of the American Civil Liberties Union.
Federal observers watch and record polling-place activity in coordination with federal civil-rights attorneys and local election officials. Because bureaucratic errors rather than malfeasance are at the root of most polling-place problems and irregularities, election officials across party lines want to minimize those errors and may appreciate the help of federal monitors, Ho said.
“But the places where we’ve seen voter intimidation with the cooperation of people working around a party or with local officials, I would guess in those circumstances the prospect of cooperation is low,” Ho added.
The office of Georgia Secretary of State Brian Kemp did not respond to interview requests.
Mississippi Secretary of State Delbert Hosemann said in a statement that despite federal monitors’ inability to observe activity inside polling places without permission, they had continued to be “granted the same access to observe within a polling place as state observers” by his office and the state attorney general.
“We have always and will continue to accommodate any federal observer sent to the state to observe our elections,” said Hosemann, a Republican.
Whether local elections officials in Georgia extend the same courtesy is anybody’s guess. The Justice Department has not yet disclosed what states and counties its attorneys and staffers will be sent to.
On Election Day 2012, the Justice Department sent 780 observers and department personnel to 51 places in 23 states. In next month’s election, the Justice Department can send the special observers from the Office of Personnel Management only to a few places in Alaska, California, Louisiana and New York where they have been authorized by court orders.
The Shelby decision “severely curtailed” the department’s ability to ensure voting rights for all, Attorney General Loretta Lynch said during a speech this month. “Indeed, this fall will be our nation’s first presidential election in almost 50 years without the full protections of the Voting Rights Act.”