The Common Law
Legitimate poll watcher or voting intimidation – where’s the line?
I'm seeing and hearing a lot about regular people that are showing up to polling stations to observe the election process. In some instances, it seems like this is being done for the right reasons but in other instances it seems like a clear effort to intimidate voters. Where's the line between the two?
This voting season has generated tension between Republicans and Democrats on a variety of issues. One of the hot-button issues is whether someone observing voting at a polling station is a legitimate poll watcher or an unofficial observer with the bad intentions of trying to chill voting.
This issue has come up in Arizona, where citizens in military tactical gear were recorded sitting outside of a ballot drop box. This raised the question – was their intent to observe or intimidate? Closer to home, in Houston, in response to the state's decision (Republicans) to send a contingent of inspectors to observe the voting count, Harris County officials (Democrats) have asked the federal government to send election monitors to oversee and ensure a fair election process. So, what is acceptable and what is out of bounds when it comes to monitoring polling locations?
It all depends on whether the person observing is an appointed and registered poll watcher. If yes, and if the person follows the rules of conduct for a poll watcher, then they have the legal right to observe at the polling station. If the person is not a registered poll watcher, then they should not linger at a polling center (other than to line up and vote themselves).
Formal poll watchers are registered voters that are appointed by a specific candidate, political party, or a specific ballot measure. Poll watchers are allowed to observe and report on irregularities in the conduct of any election, but may not interfere in the orderly conduct of an election. In Texas, a poll watcher must complete a training program, be appointed and registered in that county, and present a certificate to the election judge.
There are very specific things a poll watcher can and cannot do. For example, a registered poll watcher can have free movement around a polling station and can take notes on irregularities and potential violations of election. But the poll watcher cannot talk with voters, record images or sound, harass voters, or otherwise breach the peace. The Texas secretary of state's office published a 2022 "Poll Watcher's Guide" (available online) that summarizes the role of a poll watcher. Most states have similar laws to register poll watchers and govern their on-site activities during elections.
Early voting is underway in Travis County and ends on Friday, November 4. Election Day is Tuesday, November 8. Get out and vote!
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Marrs, Ellis & Hodge LLP, www.mehlaw.com.
The material in this column is for informational purposes only. It does not constitute, nor is it a substitute for, legal advice. For advice on your specific facts and circumstances, consult a licensed attorney. You may wish to contact the Lawyer Referral Service of Central Texas, a non-profit public service of the Austin Bar Association, at 512-472-8303 or www.austinlrs.com.