State of Elections

William & Mary Law School | Election Law Society

What You Need to Know About Election Observers in California

By: Josh Turiel

For over a century, election observers, also called poll watchers, have been keeping a vigilant eye on Americans as they cast their ballots. These volunteers observe election processes, particularly in-person voting and absentee ballot counting, to detect fraud and other irregularities. Although often affiliated with impartial civic-minded organizations or government election entities, the two major political parties also routinely employ election observers. Partisan observers were thrust into the spotlight when President Trump rallied his supporters, during a September 2020 nationally televised debate, to descend on polling places to monitor the election. Donald Trump, Jr. used social media to draft an “Army for Trump’s election security operation.” Meanwhile, Joe Biden has recruited over 10,000 volunteer election observers. This year’s hyper-partisanship has stoked fears that inexperienced election observers will sow conflict and chaos at the polls. 

California counties establish their own policies for election observers (those who plan to observe a polling place should seek guidance from local election officials), but state law sets firm boundaries that provide voters with safe, unencumbered access to the voting booth (federal law is not discussed in this post). Most notably, it is a felony to use violence or coercion to intimidate or compel any person to vote, to not vote, or to vote for a particular candidate or ballot measure. This prohibition extends to hiring or arranging for someone else to engage in such behavior. Violators face up to three years imprisonment. 

This may conjure images of overt threats of violence, but as the United States Court of Appeals for the Ninth Circuit noted, the statute extends to more subtle forms of manipulation and suggestion. In Hardeman v. Thomas, the California Court of Appeal found intimidation when associates of a candidate for local council showed up at voters’ homes and pressured them to immediately complete their absentee ballots. The associates provided a list of preferred candidates, told the voters who to vote for, or physically recorded votes on the ballot, without giving the voters adequate time to decide who they wanted to vote for. Additionally, presenting false information about voter eligibility requirements can be sufficiently intimidating to violate this statute. It is also illegal to photograph or video-record a voter entering or exiting a polling place, from within 100 feet of the polling place, with the intent to dissuade them from voting.

An election observer who believes she has witnessed fraudulent activity may not confront the voter directly. Only poll workers may challenge a voter’s qualifications. A challenge can be made if the poll worker believes that the voter is not the person whose name appears on the roster, is not a resident of the jurisdiction or a United States citizen, has already voted in the election, or is on felony parole. 

People who plan to show support for their candidate of choice on election day should be aware of California’s restrictions on electioneering. It is illegal to engage in the “visual display or audible dissemination of information that advocates for or against any candidate or measure on the ballot within 100 feet of a polling place” or vote-by-mail drop box. This prohibition includes display of a candidate’s name, likeness, or logo, or a ballot measure’s number, title, or subject, on things like signs, shirts, buttons, hats, stickers, and pens (which voters may unintentionally leave in the voting booth). However, political slogans (such as “Make America Great Again” or “Black Lives Matter”) may be displayed.

California does not allow uniformed peace officers or guards to be stationed at polling places. Election observers should not wear clothing identifying themselves as security. This restriction has roots in a saga that echoes President Trump’s call to arms. In 1988, the Orange County GOP hired guards to hold signs that said “non-citizens can’t vote” at polling places in Latino neighborhoods, dissuading some people from voting. Shortly after, California banned guards at polling places. The Orange County GOP faced an FBI investigation and paid a $400,000 settlement to a group of Latino voters. In the same vein, it is illegal to possess a firearm at or in the immediate vicinity of a polling place. 

In response to the tension surrounding this year’s election, the Office of California’s Secretary of State, for the first time, issued a memorandum to county officials to prepare them for election observers. In addition to summarizing the relevant California laws, the document recommends a number of measures to prevent conflict. First, counties should provide election observers with written guidelines of appropriate conduct. Second, poll workers should be trained in de-escalation techniques in preparation for possible confrontations with election observers who violate guidelines. Third, counties should coordinate with law enforcement to ensure preparedness. Additionally, the Secretary of State is operating a Voter Hotline for any California voter who believes their rights are being denied: (800) 345-VOTE. 

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1 Comment

  1. Who decided that allowing poll watchers to wear logo wear that says “MAGA” is ok? This is clearly a Trump slogan and part of Trump’s logo wear and should be a violation as Trump is a candidate.

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