Midterms 2022: The Poll Observer Landscape

Poll observers — members of the public permitted to monitor conduct at polling places — are a feature of elections in nearly every state. They provide a degree of transparency in the electoral process that promotes the public confidence in elections that is the lifeblood of democracy. However, in some cases, poll observers have also caused significant disruption at the polls. For example, during the 2020 election in Michigan, large groups including partisan poll observers crowded Michigan polling sites and attempted to enter vote counting rooms.^{1 Pak Yiu & Michael Martina, Michigan Still Counting Votes, Angry Poll Watchers Barred in Detroit, Trump Sues, Reuters (Nov. 4, 2020), https://www.reuters.com/article/us-usa-election-michigan/michigan-still-counting-votes-angry-poll-watchers-barred-in-detroit-trump-sues-idUSKBN27K2AQ.} In this guide we examine the relevant laws governing poll observers (a term we use here to describe both poll watchers and election challengers, discussed further below) through a detailed analysis of 12 key states. This report provides guidance regarding the power, privileges, and limitations of poll observers to statewide elected officials, law enforcement professionals, elections administrators, election protection groups, and others—regardless of partisan affiliation. We intend this guidance to help mitigate confusion or uncertainty around observation at polling sites and to help ensure that poll observers can contribute to free, fair, and secure elections. This guide includes both summaries of the legal landscape in 12 key states and common sense, proven policy recommendations concerning poll observers that help ensure access to the franchise, secure the integrity of the vote, promote transparency, and protect the safety of all involved in elections.

This report is divided into three sections: (1) The Post-2020 Changing Legal Landscape, (2) Optimizing Poll Observer Contributions: Policy Recommendations, and (3) Poll Observer Rights and Responsibilities: State Summaries. The first section surveys the evolving legal landscape for poll observers following the 2020 election, with particular attention to the rush of legislation introduced in many state legislatures concerning poll watchers and election challengers in 2021. The second section contains policy recommendations for legislators, election officials, political parties, and law enforcement leadership at the state and local level, as well as state secretaries of state and attorneys general to consider as they craft guidelines and implement policy concerning poll observer conduct. The final section provides detailed state-by-state analysis of poll watcher and election challenger credentialing, training, and regulation in 12 key states, including Arizona, Florida, Georgia, Kentucky, Louisiana, Michigan, Minnesota, Nevada, North Carolina, Pennsylvania, Texas, and Wisconsin. These states saw record turnout in 2020 and many saw significant attempts to undermine the electoral process by a variety of partisan actors as well.

Please note: this report does not purport to catalog all state statutes or rules that may regulate the behavior of individuals who serve as poll observers and should not be relied upon as legal advice. To ensure accuracy, completeness, and the most up-to-date language, please consult official sources before relying on the authorities described in this report.

• Arizona
• Florida
• Georgia
• Kentucky
• Louisiana
• Michigan
• Minnesota
• Nevada
• North Carolina
• Pennsylvania
• Texas
• Wisconsin

At the outset of our democracy, votes were cast in the open.^{2Rebecca Green, Rethinking Transparency in U.S. Elections, 75 Ohio St. L.J. 779, 786 (2014). https://scholarship.law.wm.edu/facpubs/1724/} Citizens either announced the name of their preferred candidate or cast brightly colored paper ballots that corresponded to their choice. As the franchise expanded, the country evolved from this brand of election administration and transitioned towards a secret ballot model paired with appointed observers, often appointed by state or county party committee chairs, where observers function as a proxy for broader public oversight.^{3Id. at 790.} The appointed observer model is predominant today. Nevertheless, the value of transparency in elections is as vital today as it ever has been in our nation’s history.

When properly trained and regulated, poll observers promote not only transparency, but also trust in elections, civic engagement, and election security. However, since observers became mainstays in most states, individuals have sometimes co-opted the right of observation to attempt to deny the franchise to voters, particularly those from communities of color. In the period following Reconstruction, observers often functioned as violent mobs, ensuring that newly enfranchised Black voters would not be able to cast their ballots.^{4Ben Cady & Tom Glazer, Voters Strike Back: Litigating Against Modern Voter Intimidation, 39 N.Y.U. Rev. L. & Soc. Change 173, 183–190 (2015) https://socialchangenyu.com/review/voters-strike-back-litigating-against-modern-voter-intimidation/ ; see also: Emily Eby & Joaquin Gonzalez, Tex. Civil Rights Project, Opening the Floodgates for Racial Intimidation, Disenfranchisement, and Violence by Expanding Poll Watcher Authority (2021), https://www.txcivilrights.org/_files/ugd/aab911_8fe696b7e871404fa560c40de062ace2.pdf} And throughout the civil rights era and beyond, poll observers have been deployed to intimidate Black and brown voters.^{5Eby & Gonzalez, supra note 4, at 4-6.}

The presence of observers at the polls once again became a flashpoint during the 2020 presidential election. In the aftermath of the election, claims arose that observers had been improperly denied access to polling places or had been deployed illegitimately to impact the results of the election in a number of closely contested states. For example, in Pennsylvania, the Trump legal team alleged that Republican poll watchers were denied access to observe the counting of ballots.^{6Christina A. Cassidy & Anthony Izaguirre, Poll Watchers Emerge as a Flashpoint in Battle over Ballots, AP News (Nov. 5, 2020), https://apnews.com/article/poll-watchers-ballots-access-monitor-b4e95da6bcf2c8c0e9fda190b332d6d5.} In Michigan, a lawsuit brought by the Trump campaign asserted that Republican poll watchers had been improperly denied access to certain areas within polling places, allowing Democratic volunteers to double-count ballots.^{7Ewan Palmer, Affidavits Alleging Voter Fraud Accuse Poll Workers of Wearing Black Lives Matter Clothing, Newsweek (Nov. 11, 2020), https://www.newsweek.com/michigan-election-affidavits-fraud-trump-1546698.} Lawsuits across the country included similar allegations.

Despite a lack of evidence (or success in court), these claims fed conspiracy theories that the 2020 election had been stolen. Fueled by these baseless theories, state legislatures passed laws to empower partisan poll watchers and expand opportunities for voter challenges. Texas enacted S.B. 1, which imposes criminal penalties on non-partisan election administrators if they are deemed to be interfering with the lawful work of partisan poll watchers and expands the power and privileges of watchers at the polls — including the right to observe the ballot tabulation process.^{8S.B. 1, § 3.04, 87th Legis., 2d Spec. Sess. (Tex. 2021). https://legiscan.com/TX/bill/SB1/2021/X2} In Georgia, S.B. 202 codified mass voter challenges, ensuring that all voters have the right to contest the eligibility of an unlimited number of prospective voters from the same municipality or county.^{9S.B. 202, § 16, 156th Legis., (Ga. 2021). https://www.legis.ga.gov/api/legislation/document/20212022/201498} These and similar recently enacted laws have election law experts concerned that the expanded power of poll observers will make it increasingly difficult for officials to administer elections without unwarranted disruption, interference, or voter intimidation.

Against the backdrop of the 2020 election and a new legal landscape for poll observers in many states, it has perhaps never been more critical for state and local lawmakers and election officials to carefully examine how they incorporate observers into free, fair, and secure elections or for any organization involved with elections to understand the regulations governing poll observers.

Because state law dictates most election administration, the terminology, rights, and procedures regarding election observation vary greatly from state to state. As a result, no uniform set of definitions applies across all states to capture and describe the roles played by members of the public who help administer our elections. Throughout this guide, we will refer to two distinct groups of poll observers, categorized according to the distinct roles they play:

Poll Watchers are private individuals who observe the election process, both at polling places and sometimes at locations where ballots are reviewed and counted. They are most frequently appointed by candidates or political parties and generally serve to protect the interests of the candidate or party that appoints them. In most states, state law regulates the manner in which poll watchers may engage in the electoral process—setting standards for their appointment process, their conduct during poll watching, and the number of poll watchers permitted at any particular location.

Election challengers have many of the same basic privileges as poll watchers but are distinguished by their ability to dispute whether a prospective voter is eligible to cast a ballot. The rights of challengers vary by state, but most states set special credentialing requirements and limitations for challengers.

For the remainder of this guide, we will use poll observers or observers when broadly referring to these two groups of members of the public permitted to observe conduct at polling places. We will use either poll watchers or watchers or election challengers or challengers when distinguishing between observers. Note, however, that in some states the same designated individual observers perform both poll watcher and election challenger functions.

It is important to note that our definition of “poll observers” for the purposes of this report does not include poll workers or other categories of officials permitted to be present at polling places—and in some cases permitted special access or election challenge privileges. Poll workers and other officials are addressed by other authorities not included in this report.

Finally, this report does not purport to catalog all state statutes or rules that may regulate the behavior of individuals who serve as poll observers and should not be relied upon as legal advice. To ensure accuracy, completeness, and currentness, please consult official sources before relying on any of the statutes described in this report.

After the 2020 election cycle, state legislators introduced at least 123 bills in 25 states over the course of 2021 modifying the power and privileges of poll observers. ^{10 The National Conference of State Legislatures, State Elections Legislation Database (Updated: July 18, 2022, https://www.ncsl.org/research/elections-and-campaigns/elections-legislation-database.aspx) (this number reflects all state legislation introduced in 2021 and catalogued in NCSL’s State Elections Legislation Database under the topics of “Challenges to Voters” or “Poll Watchers”).} The proposed bills touched every facet of election administration and variously would have granted observers greater access to voters and election officials at polling sites, given permission to record voters and election processes, loosened residency requirements for observers to serve at polling locations, and introduced civil and criminal penalties for obstructing observers engaged in lawful activity. Of the bills introduced, at least 11 were enacted into law granting greater authority to observers (FL S.B. 90, GA S.B. 202, IA S.F. 413, KY H.B. 574, MT S.B. 93, NH S.B. 89, NY S.B. 1027, TX H.B. 1128, TX H.B. 3107, TX S.B. 1, TX S.B. 598).

Of these 11 bills, nine (FL S.B. 90, GA S.B. 202, KY H.B. 574, MT S.B. 93, NH S.B. 89, NY S.B. 1027, TX H.B. 1128, TX H.B. 3107, TX S.B. 598) give observers increased access to ballot counting and processing. Two bills (IA S.F. 413 and TX S.B. 1) create criminal penalties for interfering with the work of observers.

BILLS PASSED IN 2021

The trend continues in 2022 with 58 bills introduced in 21 states that would alter the rights of poll observers, according to the National Conference of State Legislatures. As of the date of this publication, four bills have been enacted into law (KY H.B. 564, LA S.B. 74, NH H.B. 1174, UT H.B. 387).^{11The National Conference of State Legislatures, State Elections Legislation Database (Updated: July 18, 2022), https://www.ncsl.org/research/elections-and-campaigns/elections-legislation-database.aspx.}

BILLS PASSED IN 2022 AS OF JULY 18, 2022

As the stewards of election administration, state lawmakers and election officials are charged with creating and implementing an election system in each state that ensures access to the franchise for all who qualify, secures the integrity of the vote, promotes transparency at all levels of the electoral process, and protects the safety of all involved in elections. Because every state faces its own challenges, there is no one-size-fits-all way to configure a poll observer program. Nevertheless, several common practices have helped advance the goals of access, integrity, transparency, and safety in states where they have been implemented. Below is a non-exhaustive list of such practices, presented roughly in order of how far in advance of an election they would ideally be implemented. We begin with those recommendations that must be implemented farthest ahead of an election, and end with those that can be implemented closest to Election Day. We note that these recommendations can be implemented through a variety of means, such as legislation, administrative guidance to the extent practical under existing law, or allocation of resources. ^{12Readers are encouraged to consult additional resources for further recommendations concerning poll observers including the Bipartisan Policy Center’s report Policy to Advance Good Faith Election Observation (Jan. 2022), https://bipartisanpolicy.org/download/?file=/wpcontent/uploads/2022/01/Policy-to-Advance-Good-Faith-Election-Observation-Bipartisan-Policy-Center.pdf.}

Create a formal process for credentialing poll observers. Formal credentialing of poll observers allows state and local election officials to more effectively manage who enters their polling sites and how observers are allowed to engage in the election. Credentialing procedures should:

• Require that the names of all poll observers be submitted to election commissioners at the county or state level before Election Day;
• Make clear the number of watchers and challengers permitted to serve at a single polling location; and
• Set a deadline prior to Election Day by which all parties must submit candidates for observation. Existing deadlines range from a few days before Election Day to several months in advance.

Expand training for poll observers, election workers, and all non-voters permitted at the polls. Training of all individuals who work or volunteer in elections helps to prevent partisan bias and mistrust. To ensure that all parties at polling sites are aware of their rights and responsibilities, poll watchers, poll challengers, and election workers should receive training on their rights and duties, the rights of voters, and on how to deescalate conflicts that may arise at a polling site. States and/or counties should require or at minimum offer and recommend this training. Alternatively, where no training is offered at the state or local level, parties should provide it to their election workers and observers.

Explicitly prohibit voter intimidation at polling places. Most states explicitly prohibit voter intimidation, and many impose criminal penalties on individuals who violate these statutes. Examples of voter intimidation can include but are not limited to aggressive or threatening behavior at a polling site, blocking or interfering with access to a polling site, direct confrontation or questioning of voters, disrupting voting lines, and disseminating false or misleading election information.

Set clear guidelines defining acceptable behavior at the polls and procedures for expelling individuals who violate the guidelines. States already impose a variety of limitations on the type of election activity poll observers may engage in. The overwhelming majority of states explicitly prohibit watchers and challengers from engaging in behavior that disrupts the orderly process of the election; talking to voters; or handling ballots, voting equipment, or other election materials.

• Poll watchers and challengers should be clearly delineated from poll workers so voters can easily tell the difference. In several states, observers are required to wear ID badges at all times while inside a polling location.
• To keep voting easy and accessible for all registered voters, where permitted by law, clear guidelines and standards should be established to limit and address bad-faith ballot challenges. Such challenges can be used as a tool to suppress the vote; historically they have been used against voters of color in particular. These guidelines can include requiring challengers to articulate the basis for the challenge and ensure it complies with law; requiring that challenges are based on a degree of knowledge specified by law; and barring challenges brought on suspicion that a voter is ineligible due to their perceived race, gender, gender identity, ethnic background, language, or ability.
• To further protect against interference or intimidation, states should set explicit physical limitations on how close watchers and challengers may come to voting machines, booths, or tables used by election officials. States should also prohibit challengers from talking directly to voters unless they are in the presence of an election official.
• States should set clear procedures for removing observers who violate these provisions and ensure that statutes designed to prevent unlawful interference with the rights of observers do not inhibit the removal of unruly individuals.
• All guidelines and limitations on watchers and challengers should be posted, publicly available, and accessible at polling places

Coordinate with local law enforcement in advance of elections. Local elections authorities should coordinate with law enforcement in advance of upcoming elections to plan for safe and secure elections and to address potential threats. Election authorities should work together to make sure law enforcement is fully informed about electionrelated matters and help ensure that law enforcement is properly equipped to respond to anti-democracy threats. While this does not mean that law enforcement must or even should be present at polling places, elections officials and law enforcement can work together, for example, in the creation and implementation of risk matrixes to assess threats posed to election infrastructure.

Keep the public informed of policies and prioritize transparency. Effective election observation is a valuable tool for improving the quality of elections, and the presence of dutiful observers helps build public confidence in the electoral processes. Keeping the public informed of the policies and practices that guide observers at polling sites builds trust and confidence in elections. It also helps to preempt or rebut bad-faith accusations of partisanship in the administration of elections.