Partisans are working to disrupt our elections. Rather than resist, some state legislators are helping them.
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When Donald Trump called Georgia Secretary of State Brad Raffensperger to demand that he “find 11,780 votes, which is one more than we have,” hinting at criminal prosecution, he was joined by a surprising participant: Cleta Mitchell.
Mitchell has long been a prominent right-leaning attorney, representing the National Rifle Association as well as senators like Oklahoma’s James Inhofe and Florida’s Marco Rubio. She was a partner in the DC office of influential law firm Foley and Lardner until the firm ousted her for her involvement with Trump’s effort to overturn the 2020 election. She is a serious lawyer. Trump and Mitchell’s phone call is now the subject of a grand jury probe in Atlanta.
Mitchell, meanwhile, hasn’t given up trying to politicize and undermine our elections.
This week, the New York Times published a story detailing Mitchell’s far-flung campaign to assemble an army of hyper-partisan poll watchers
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that will disrupt, discredit, and intimidate election officials. Among other things, the trainees are encouraged to research the backgrounds of historically nonpartisan election officials and categorize them as “friend or foe.”
Mitchell claims she is doing nothing more than the law allows, indeed encourages. “The American election system envisions citizen engagement and we are training people to assume the roles outlined in the statutes,” she told the Times.
While these partisan poll watchers are pushing their roles to (and sometimes beyond) their absolute legal limits, partisans in state legislatures are working to loosen or erase those limits. What we are witnessing is a coordinated campaign to undermine elections from both within and without.
The Brennan Center’s most recent edition of the Voting Laws Roundup
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, our periodic review of state-level laws affecting election integrity, bears this out. Six states — Alabama, Arizona, Florida, Georgia, Kentucky, and Oklahoma — have enacted nine laws that raise the likelihood of partisan interference in our elections. And at least 17 such bills introduced this year are still moving through five state legislatures.
Some of those laws connect unnervingly with Cleta Mitchell’s work. Oklahoma’s H.B. 3677, for example, would make it a felony to obstruct the view or restrict the free movement of a poll watcher, which could empower aggressive interference at polling places. State legislators are rolling out the red carpet for Mitchell’s poll watchers.
Virginia’s 2021 gubernatorial election gave us a taste of where this movement is leading us. Election officials in 13 polling places complained that poll watchers were disruptive. In at least one instance, a would-be voter left without casting a ballot after feeling intimidated. “Everything [the poll watchers] saw that they didn’t understand was fraud in their minds and that’s how they would frame the questions,” complained one Virginia registrar.
Ask yourself: Would you want to work as an election official knowing that partisans are scouring your history for reasons to cast you as their enemy, then showing up to hound you at the polling place with the blessing of state legislators?
Even without the state legislature getting involved, the rematch between incumbent Georgia governor Brian Kemp and Democratic challenger Stacey Abrams would have been a flashpoint in the fight over election integrity. But new laws add fuel to the fire. As detailed in our Voting Laws Roundup, Georgia state legislators have handed more power to partisans on local elections boards and expanded authority to investigate elections crimes, despite very little evidence such crimes are a significant problem. Add in the prospect of hyper-partisan poll watchers, and it’s a recipe for a messy election.
Watch this space.
Second Amendment Past, Present, and Future
As the nation reels from the Texas mass shooting, the Supreme Court’s conservative majority is poised to strike down a century-old handgun licensing requirement in New York State Rifle & Pistol Association v. Bruen. In a wide-ranging discussion
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, Andrew Cohen and Duke Law professor Darrell Miller reflect on how this decision may be “just the start of what some lawyers and advocates say will be a relentless effort by the Court to transform gun regulation around the United States.”
How did we get here? In an essay adapted from his book The Second Amendment: A Biography
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, Michael Waldman connects the amendment’s 18th-century origins to the NRA’s successful campaign to change its meaning in the minds of tens of millions of Americans — and several Supreme Court justices. Read more
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The President's Hidden Emergency Powers
Secret documents give presidents broad emergency powers that appear to lack oversight from Congress, the courts, and the public. New records obtained by the Brennan Center through a Freedom of Information Act request shed light on the possible extent of these powers, which may include the ability to suspend habeas corpus and implement an internet kill-switch. And much about these extreme claims of executive authority, which date back to the 1950s, remains unknown. “We have been left to wonder whether existing documents still greenlight the violation of Americans’ constitutional rights and civil liberties, or if modern sensibilities and understandings of the law have moderated their approach,” Benjamin Waldman writes. Read more
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Ending the Government’s Mass Surveillance of Americans
A recent government report found that the FBI in 2021 used a law intended to spy on foreigners overseas to conduct up to 3.4 million warrantless searches of Americans’ phone calls, emails, and text messages. The practice is a significant intrusion on people’s privacy and a misuse of government powers, according to Elizabeth Goitein. “Congress must once again act to stop the government from using foreign intelligence surveillance authorities to make an end run around Americans’ constitutional rights,” she writes. THE HILL
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A Last Resort for Failing Jails and Prisons
The conditions at New York City’s Rikers Island jail have grown so poor that the Justice Department is pushing an extreme judicial solution: a federal takeover known as receivership. In a new explainer, Hernandez Stroud covers how this legal mechanism works, its origins, and its advantages and disadvantages. READ MORE
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Coming Up
VIRTUAL EVENT: Who Gets to Be an American?
Race, Fear, and Surveillance in Domestic Policy
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Wednesday, June 8, 1–2 p.m. ET
Americans who are people of color are frequently subjected to undue suspicion, greater surveillance, and other policies that contradict the American promise of equality. Join us for a live discussion on these often discriminatory practices and the efforts to fight against them with moderator Faiza Patel, director of the Brennan Center’s Liberty & National Security Program; Sahar Aziz, executive director of the Rutgers Law School Center for Security, Race and Rights; Ann Chih Lin, director of the University of Michigan’s Lieberthal-Rogel Center for Chinese Studies; and Vicki B. Gaubeca, director of the Southern Border Communities Coalition. RSVP today
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This event has been approved for one New York State CLE credit in the category of Diversity, Inclusion, and Elimination of Bias.
Want to keep up with Brennan Center Live events? Subscribe to the events newsletter.
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News
Michael Li on the consequences of gerrymandering // NEW YORKER
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Dan Weiner on the future of campaign finance // MARKETPLACE
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Tom Wolf on the flawed 2020 Census count // PUBLIC NEWS SERVICE
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Lawrence Norden on the importance of election officials // NPR
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Ted Johnson on fringe conspiracy theories // xxxxxx
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