At both the presidential and vice presidential debates this year, President Donald Trump and Vice President Mike Pence said they would fight in court against easy access to mail-in ballots to make sure there was no fraud, while the Democratic candidates Joe Biden and Kamala Harris encouraged as many people as possible to vote.
Trump has also called on his supporters to go, en masse, to polling places to make sure there's no fraud with in-person voting, although it would break election law in every state and could lead to voter intimidation.
So the right of every American to vote seems more at risk this year than ever.
CNN talked to Sarah Brannon, director of the ACLU's Voting Rights Project about how to protect your vote this year. The telephone conversation, edited slightly for length, is below:
What should you do if you feel nervous at your polling place?
WHAT MATTERS: Why don't we start with the the first question: President Trump is essentially inviting the support of white supremacists and people who carry guns and protests and all these other groups. And then he is simultaneously telling his supporters to go to polls in in a non-traditional way and essentially watch people vote. What should Americans do if they feel nervous going to the polls?
BRANNON: I think the first answer is that they should understand that in most states, it is illegal to be in a polling place if you are not a certified poll watcher.
And in most states, it is illegal to be in a polling place with a gun, a firearm, unless you are state police officer who is there on official duty. You have to have a justification.
That's true for the federal government also. Federal law enforcement officers are prohibited by federal law from being in polling places with guns or firearms.
I do say by most states because it does vary state by state, and there are a few exceptions. They do have exceptions in certain states about the ability of people to carry guns and where they can bring them.
Also, many polling places are on school grounds and there are laws about bringing firearms and guns onto the school property.
When I talk about being a certified poll watcher, I also think it's important for people to understand what that means.
You have to be certified by a political party with a written certification that has been obtained so that your name has gone on a list that is approved ahead of time to be at that polling location.
In many states and counties in the country, you have to be a resident of the county where the polling place is located and certainly have to be a resident of the state to be approved to be a certified poll watcher, and you can only have one poll watcher, so each polling place can only have one representative of the local party to watch voting as it's going on.
The ability of the general public to enter polling locations and interact with voters is prohibited by state law in almost every state in the country.
If you are in a circumstance as a voter where something like that (intimidation or an unauthorized person in the polling place) is occurring, you need to report it to the election official. You can call (866) OUR-VOTE, which is a nonpartisan election protection hotline, and report that this incident is occurring. If the local elections official at the point is not helpful, you should call your state election official and report that this is going on and hopefully steps can be taken to stop the prohibitive activity.
What's appropriate outside a polling place?
WHAT MATTERS: Separate from the official poll watchers, there is this idea that maybe there will be protests outside polling places or there will be large gatherings of partisan supporters. And laws do allow that. So, you know, should you just ignore those if you feel intimidated by those people? What's the remedy for that?
BRANNON: Yes, I think the advice would be to ignore them.
Let me go back and give you one more fact about the poll watchers, which is also, I think, helpful for people understand is that in most states, it is prohibited for the poll watcher to speak directly to the voter. While they are allowed in the polling place and observing what is going on, if they have concerns, they're supposed to raise the concerns only with the election officials. So their ability to make voters feel intimidated should be limited because, I mean, obviously their presence may intimidate people... they have to go through a certain chain if they have concerns. And those rules and regulations that states have are intended to protect voters so that the poll watchers are not speaking directly to the voters.
Poll watchers should not be engaging with voters
WHAT MATTERS: Does that happen in real time? I've always wondered this. Do I know that they're challenging my registration or my ability to vote if they're not engaging me?
BRANNON: What happens in real time -- that's probably something that's fairly nuanced and will vary a great deal by state because it depends on what the state law requires of the poll worker -- the election official in the polling place -- to respond to the challenge.
In some states, the poll worker then needs to first talk with the voter and respond to the challenge, whatever it might be: 'you're not really who you say you are,' 'I don't think your ID is valid' or whatever, and the poll worker has an obligation to investigate.
In some states, the poll workers don't have to do anything, so you might not know. That's going to vary a great deal.
Why is there more concern this year?
WHAT MATTERS: Those rules and the way you've just described them sounds pretty reassuring. So why are people nervous about the, for instance, the end of the consent decree from 1982 (Read more about that here). Why is there concern about intimidation this year If the things that you just said her correct?
BRANNON: There are two answers to that question.
The first is that you mentioned the protesters who are outside the polling place who are allowed, and every state has rules, too, because if you are doing any partisan advocacy at a polling place, most states have what they call an electioneering line. So you have to be outside of a certain distance from the entrance to the poll, which are also designed to encourage people to feel comfortable to then actually go into the door of the poll. If they want to walk around or not engage protestors, they can avoid them more easily.
I think the concern is twofold:
- That there are individuals who won't adhere to those walls and those rules, and is that circumstance going to exist. And are local election officials gonna have the capacity to manage individuals who don't adhere to what the state law or the local rules are about interacting with on Election Day.
- I also think there's a concern about poll watchers being in polling places and being obstructionist, as opposed to really just looking for a valid concern. Those may not intimidate the voter, but they may impact the flow of the process.
How could poll watchers be disruptive?
WHAT MATTERS: Is there evidence or precedent in real life for poll watchers being obstructionist? Is there any evidence to suggest that Republican poll watchers will just try to gum up the works?
BRANNON: We are very concerned. I think that's all we can say. As you noted, there was a consent decree in place for many years that helped regulate this and part of what the consent decree did was help ensure that the state rules are followed. But given that there is not currently a consent decree, we are concerned about some of the statements the president has made. We are concerned about what might happen.
WHAT MATTERS: If you could get hypothetical for a minute, let's imagine the poll watcher was being obstructionist. Would the end result of that be a longer line? Would it be challenged ballots? What would be the aim of the obstruction of poll worker? What is what is victory for them?
BRANNON: I think we don't know because we haven't seen it, right? This has not been a problem that has occurred, in part because of the consent decree, in recent years. So what exactly would their goal would be and then what they would be able to accomplish, I think we're unclear about at this time, so I don't want to speculate. But we are very concerned that they are thinking about doing things that would have an impact. Potentially of making the lines longer and of creating a situation where people were denied the right to vote.
Freedom to speak vs. the freedom to vote
WHAT MATTERS: You were talking about electioneering. Where does the ACLU stand on electioneering outside polling places? Because it's an organization that advocates for free speech. But I would think you're also trying to protect people's right to vote. So what is the happy medium?
BRANNON: I am not a First Amendment lawyer. I'm a voting rights lawyer, so I don't want to overstate the official position on that that issue but in terms of how it works from a voting perspective, it is a long established legal process that states have of setting up an electioneering line so that there is a distance between the front of the polling place and any public individuals.
That is applied equally to all individuals. Whatever you're campaigning for, whatever protesting you're doing that you can't get that close to the front door of a polling place.
I think it's a good thing to have some sort of designated area so that people can be at the polling place; they are allowed to express their opinions. That, of course, is their right. But that it's set up in such a way so that those voters going in and out of the place are not, you know, have an opportunity to feel that they can avoid that interaction if they choose to.
It's important to understand when absentee and mail-in ballots are processed in your state
WHAT MATTERS: The thing that President Trump was seeing a conspiracy in was the lack of poll watchers or the inability of his poll watchers to go into an early absentee voting place in Philadelphia. He kind of mangled the delivery, but does he have a point there in that so many people are voting absentee or in person and those campaigns or parties are not going to get the same ability to oversee the process that they normally would simply because of the way people are voting.
BRANNON: In Pennsylvania, they don't canvas the mail and absentee ballots until Election Day. That's the state law. So those ballots will not be reviewed and then put in the appropriate pile for being counted until Election Day. They can't start until Election Day, and I think so most people understand, they will be counting after Election Day because there are going to be a lot of mail ballots and they can't start counting them until Election Day.
When they do the canvas of the mail and absentee ballots, there will be a poll watcher who can be present in that to observe that counting. That is Pennsylvania State law -- that a poll watcher is allowed observe the canvas of the mail and absentee ballots.
What's going on right now is people are essentially delivering their mail ballots, they're leaving them with election officials. They're not being processed, counted or evaluated, and that will not happen until Election Day.
What should I do if my vote is challenged?
WHAT MATTERS: The rules in every state are different. But let's say, just in a general imaginary state, I show up, I can't fulfill the voter ID requirement. Should I leave the polling place, or should I cast a provisional ballot? What should you do to make sure that you do something on Election Day if you can't satisfy one of these laws that are in, I think 35 states?
BRANNON: People have trouble voting at Election Day for a couple of reasons.
ID. If the issue is that you don't have the acceptable form of ID on your person and you do not have the opportunity to go and get your ID and come back and vote later in the day, then yes, you should vote a provisional ballot.
I would say that as a fail-safe in all circumstances, you should vote a provisional ballot versus walking away.
One thing I want to flag when people ask a question like that is in some states you have to vote at your correct precinct. And sometimes people show up at the wrong precinct. And they might have the option to go to the correct precinct, where they would be able to vote a regular ballot. And if that is your case and you have the capacity to go to the correct precinct, you should do that so you can vote a regular ballot instead of a provisional ballot.
It's important for people to understand that because in a lot of states -- Pennsylvania is definitely one of them -- the correct precinct is not geographically that far away.
But in all the circumstances, or if you're having other issues, you should always vote a provisional ballot. Federal law allows you to do that.
Should I vote by mail or in person?
WHAT MATTERS: Do you have a position on whether people should vote by mail or vote, early in person or on Election Day?
BRANNON: I think everybody should vote.
You should make a voting plan that is the best voting option for you in light of the pandemic.
WHAT MATTERS: And it could be any one of the above.
BRANNON: Yes. I think people should have options as a matter of policy. This year, like every year, voters should decide what options are work best for them.
What are your plans to protect the results?
WHAT MATTERS: There is a ton of evidence that Republicans and President Trump are essentially banking that their performance will be better on Election Day and that they will try to use what the Election Day tabulation is instead of the final tabulation. How is the ACLU preparing to fight that if that happens?
BRANNON: I don't think I can speak to you right now to our specific plans. I think it is definitely our policy position that every ballot is counted and then we intend to use our resources to help ensure that everything is counted. What that means and what that looks like I think will vary very much state by state and depending on what happens. So our position is that that every single ballot should be counted.
Are you expecting the results to be challenged?
WHAT MATTERS: Do you think that there will be challenges this year in a way that there have not been in previous years to election results?
BRANNON: I would hope not, but I think the evidence speaks for itself. I'm sure you're aware of the vast volume of election-related litigation that is already going on. And it's been unprecedented this year the number of lawsuits that have been filed related to election issues, which I think supports a concern that there will be unprecedented challenges that continue as we go through the actual voting accounting process. But I don't know the answer to that. And I certainly hope that we will allow election officials to do their job and to count every ballot and adhere to the results.
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