Dan McGrath and his conservative coalition want you to know they’ll be watching you on Election Day. These political vigilantes, calling themselves the Election Integrity Watch, have posted a $500 bounty on information that sends a fraudulent voter to jail.
The coalition’s ominous posters, billboards and radio ads have set off fireworks among voting-rights activists.
“This is intimidation that is designed to scare voters off,” U.S. Rep. Keith Ellison said at a press conference in Minneapolis City Hall this week. (You can see the event on the UpTake.)
Scaring voters away from the polls is “not legal,” Ellison said.
But there is very little anyone can do to stop self-appointed surveillance squads as long as they honor the Minnesota requirement that they keep themselves and any posters, banners, etc. more than 100 feet away from polling places.
“It’s a grey area in a strict legal sense,” said Leanne Holcomb, an attorney with the Minneapolis law firm Dorsey & Whitney who also works with the national voting rights organization Election Protection.
State and federal laws intended to safeguard voters’ rights often clash with laws protecting other fundamental rights such as the freedom for political activists to speak their minds. And claims that one person or group is interfering with an individual’s right to vote can be a hard sell in a court of law.
“There are no real clear-cut lines,” Holcomb said. “You would have to describe the factors to a court and hope they see it your way.”
And so, the only effective steps left to voting-rights groups are to watch the watchers who vow to watch us go to the polls Tuesday.
The U.S. Attorney in Minneapolis announced Thursday that he was stepping up Election Day efforts by the FBI and other officials to address problems with election fraud and voting rights abuses.
Still, this flare up over voting rights in Minnesota is significant in a political and historical context. The intimidation that tainted elections in segregation-era America left sensitive scars that cannot be forgotten or ignored.
The very suggestion that someone or some group is intimidating certain voters — especially naturalized immigrants and racial minorities — is a serious accusation that should not be made carelessly.
So I asked McGrath to explain Election Integrity Watch in his own terms.
McGrath is the executive director of Minnesota Majority, one group in the coalition. The others identified on the coalition’s website are Minnesota Voters Alliance, Freedom Council and the North Star Tea Party Patriots.
Money, volunteers and mission
McGrath said the coalition has spent about $50,000 over the past two months and also recruited about 6,000 volunteers to be deployed next Tuesday.
When I asked where the $50,000 had come from, McGrath responded via email: “As a 501 C4 organization, there is no public reporting of donors and we respect our donors’ privacy. I can tell you that the money raised for Election Integrity Watch did come from private donors among our membership base.”
The bulk of the money went to pay for 10 electronic billboards in Rochester, Minn., and the Twin Cities, radio ads in Winona and the Twin Cities and 20 posters on bus shelters mainly in Minneapolis and St. Paul, McGrath said.
Some of the volunteers will be assigned to work at 10 phone stations set up in a hotline network on Election Day, he said, and the others will fan out “to watch what’s going on around them.”
Reflecting Minnesota law, the fraud spotters will be instructed to stay at least 100 feet away from polling locations, he said, and they also will be told “not to approach any voter for any reason.”
What will they do if they suspect someone is voting illegally?
“It depends on the situation,” McGrath said.
Primarily they are to document and report their suspicions to the coalition’s hotline, where volunteers will triage calls and relay reports deemed actionable to law enforcement agencies.
“But if they see voter intimidation or harassment going on, they are instructed to first call 911 and get the police involved and then call Election Integrity,” he said.
Handcuffs and jail bars
Even before Election Day, though, critics say the billboard and bus stop campaign is designed to scare certain voters from going to the polls at all. One ad depicts a person in handcuffs and warns of felony charges. A billboard shows three people clad in orange jump suits and locked up behind bars.
“It’s an effort to make people afraid and build an environment of fear,” said Maureen Ramirez, who directs Minnesota Civic Engagement Table, a collaboration of nonprofit organizations that are working to increase voting and other forms of civic engagement.
Certain groups of legitimate voters — especially immigrants and ex-felons whose civil rights have been restored — will be unnerved by such images, she said.
“If you think you are going to get challenged, or you think there is going to be a problem, then you are more likely to stay home and say, ‘I don’t need that kind of hassle,'” Ramirez said.
Immigrants and other voters in city neighborhoods where the posters have been displayed have tended to vote for Democrats. Indeed, high turnout typically favors the Democrats. So there would be ample political reason to discourage those votes.
Mistaken fraud spotting
“I’m a 52-year-old white male, and I doubt that anybody from that group is going to be stopping me or reporting me,” said Prof. David Schultz of Hamline University School of Law, an expert on campaigns and elections.
There is a racial component involved in presuming you can spot someone who is voting illegally, Schultz said. It involves targeting certain profiles of voters.
Another worry is that that the $500 reward will spur Election Integrity volunteers beyond the bounds outlined on the coalition’s web site and in state and federal law.
Mistakes made by an overzealous “fraud spotter,” could lead to unfounded accusations and even confrontations.
A volunteer may lack the personal knowledge that is required to substantiate a claim of voter fraud, said Kathy Bonnifield of Citizens for Election Integrity Minnesota, a group that works with the League of Minnesota Voters to organize citizen observations of post-election audits. She also has served as an election observer in other countries in a program organized by the U.S. State Department.
For example, the volunteer may not know that a neighbor who had committed an earlier felony had recently satisfied the requirements for regaining voting rights. Or, a spotter may have no way of knowing which immigrants had recently gained citizenship.
Whether or not any voter would feel intimidated varies from person to person. I don’t give a hoot if a crowd of “fraud spotters” stands down the street from my polling place. For all I care, they can shoot videos of me going in to vote. On the other hand, my shy neighbor might be shaken by such surveillance.
“If even one voter is intimidated and doesn’t feel good about voting, that’s a problem,” Bonnifield said.
Don’t even think about it
McGrath rejected as “ridiculous” the accusations that the coalition is staging an organized effort to intimidate voters or suppress legitimate votes.
“All we are doing is watching,” he said. “If that is a threat to somebody, then you must be doing something you shouldn’t be doing.”
It’s more effective to stop fraud from happening in the first place than to try to catch it and prosecute it later, he said.
“If you are thinking about committing voter fraud, we are watching,” McGrath warned. “We hope that will be a deterrent and stop it from happening, because once the vote is counted you can’t take it back.”
The debate sparked in Minnesota is flaring in other states too, the New York Times reported.
In Milwaukee last week, several community groups protested the posting of large billboards throughout the city that show pictures of people behind jail bars under the words “We Voted Illegally.”
“The protesters said that the posters — it was not clear who paid for them — were intended to intimidate people into staying away from voting booths,” the Times said.
In Houston, a Tea Party group called the King Street Patriots recently accused a voter registration group, Houston Votes, of turning in fraudulent voter registration applications and of being tied to the New Black Panther Party. The registration group denies the accusations, the Times said.
“Private efforts to police the polls create a real risk of vote suppression, regardless of their intent,” Wendy Weiser, director of the Voting Rights and Elections Project at New York University’s Brennan Center for Justice told the Times.
“People need to know that any form of discrimination, intimidation, or challenge to voters without adequate basis is illegal or improper,” she said.
Not easy to charge
But there are few cases around the country of successfully pressing voter intimidation charges.
In 2008, 67-year-old Dora Escobedo thought she had a case when she said a man who claimed he was investigating voter fraud showed up at her home in Albuquerque, accused her of being a non-citizen intending to vote fraudulently and threatened to call federal immigration authorities.
Further, a complaint [PDF] filed in U.S. District Court in New Mexico alleges that the New Mexico Republican Party had distributed press packets claiming that Escobedo and nine others appeared to have voted suspiciously in a primary election. The press packet included her telephone number and other identifying personal information, the complaint said.
The New Mexico Independent reported that it had confirmed the investigator’s visit to Escobedo’s home. And the Associated Press reported that the investigator had been hired by the state Republican Party.
The Latina woman was a registered and eligible voter, said attorneys who represented Escobedo on behalf of the Mexican American Legal Defense and Educational Fund.
But a federal judge denied Escobedo’s request for a temporary restraining order on Election Day after the private investigator testified under oath that he would stay away from her, the Legal Defense group said.
Freedom of speech
While vigilante groups might offend some voters, there is an important distinction between an act or a speech that leaves someone feeling intimidated and an act or speech that constitutes illegal intimidation, said Prof. Raleigh Levine of the William Mitchell College of Law in St. Paul.
To the extent that the allegedly-illegal intimidation at issue consists of speech — as opposed to, say, an act of force — the speaker’s First Amendment rights have to be taken into account.
There is a key exception. The U.S. Supreme Court held in 1992 that the governmental interest in preventing voter intimidation was sufficient to justify a100-foot restricted zone around polling places. That’s the same speech-free zone that Minnesota law imposes.
“But outside that zone, it would appear that many speech restrictions …will be constitutionally questionable,” Levine said in an email response to my questions.
Under federal law it is illegal to intimidate or interfere with a person who has voted or is trying to vote, she said. But the law targets only those whose willful intimidation is “by force or threat of force.”
So standing just over 100 feet from a polling — even standing there with offensive signs and a video camera — wouldn’t suffice as a legal basis for a charge of intimidation unless those actions were backed up with threats of force, she said.
On Thursday, Election Integrity Watch moved to test the 100-foot limit by suing election officials in Hennepin and Ramsey counties and the Secretary of State for the right to go into the polls wearing Tea Party apparel and buttons saying, “Please ID Me/Election Integrity Watch.”
Similarly, Minnesota law makes it a gross misdemeanor to use “[a]bduction, duress, or fraud” to “obstruct or prevent the free exercise of the right to vote of a voter at a primary or election, or compel a voter to vote at a primary or election.”
Again, the law seems to require some force or threat of force, harm or reprisal before speech will be held to amount to illegal intimidation, Levine said.
Poll watchers and rights groups
And, of course, members of Election Integrity Watch are not the first citizens to mobilize for the sake of keeping honest and fair elections as they define that goal. Political parties are allowed to send credentialed observers inside Minnesota’s polling places to monitor the process and challenge votes that appear to be unfairly cast or counted.
And other groups take it on themselves to monitor polling places from the outside.
Doesn’t Election Integrity have as valid a reason to watch the polls as your group, I asked Ramirez at the Civic Engagement Table.
There’s a fundamental difference, she said.
“Their campaign is built on fear,” she said. “We are not telling people that voting is dangerous and that the election system is broken and that lots of people are committing fraud. We are saying, ‘Voting is your right.’. . . What they are doing is scaring people.”
Where’s the problem?
One reason some critics challenge Election Integrity’s motives is that there is scant conclusive evidence that voter fraud has been a serious problem in Minnesota.
Minnesota Majority, McGrath’s group, reported to Hennepin County authorities that 450 felons had voted, possibly illegally, in the 2008 election. This week the Hennepin County Attorney said that 47 of the voters should be charged with fraud.
Of all the ballots cast in the county, “about 0.00006 percent,” allegedly were fraudulent, County Attorney Mike Freeman told the Star Tribune.
“There was no evidence of any organized effort to enable or promote this activity,” Freeman said.
McGrath insisted in an interview with MinnPost that Freeman’s count missed many ineligible votes that county authorities can’t prove.
Further, the county would have missed those 47 allegedly fraudulent votes if Minnesota Majority hadn’t reported them.
“So the citizen groups are essential in upholding election laws,” McGrath said.
Groups in search of problems
Schultz at Hamline University wonders, though, whether citizens groups of all political stripes aren’t sometimes “groups in search of problems” when they set out to defend election integrity.
“I don’t see any situation where there have been real problems,” Schultz said. “The allegations of intimidation and the claims of fraud both are highly unsubstantiated in terms of what actually has occurred.”
That’s not to say problems couldn’t arise, he said.
But even in Minnesota, with its high voter turnout rate, it’s likely only 65 percent or so of eligible voters will bother going to the polls this election.
“We have a third of the state that’s not going to vote,” Schultz said. “What makes us think there is any group of people clambering to cast their votes illegally….I’m more worried about people who are going to sit home on Election Day and eat bean dip rather than go to the polls and cast their votes.”
Sharon Schmickle writes about national and foreign affairs and science. She can be reached at sschmickle [at] minnpost [dot] com.