Did Armed Vigilantes Guarding Ballot Boxes Break the Law? Experts Weigh in

In the lead-up to the November midterms, reports of armed citizens "guarding" ballot boxes have surfaced, sparking complaints of voter intimidation and wider concerns about the safe delivery of next month's votes.

In Arizona, "armed vigilantes" were recently caught on film "monitoring" ballot boxes in Maricopa County. In a statement on Monday, Secretary of State Katie Hobbs, who is running for governor, said she had referred six reports of voter intimidation to law enforcement.

Such acts of apparent vigilantism spell a worrying new chapter in the controversy over the use of ballot boxes, connected to false allegations surrounding the 2020 presidential election.

Theories about the misuse of ballot boxes have been discredited by multiple analysts, but the conspiracy has taken hold among election deniers, rearing its head once again for the midterms.

While the Arizona "armed vigilantes" do not yet appear to have released a statement explaining their motives, an ABC reporter spoke to other ballot box watchers, who attached themselves to a group called Clean Elections USA.

Clean Elections USA describes itself as a "grassroots organization committed to election integrity" that believes there was "coordinated effort to stuff ballot boxes in 2020."

The brandishing of firearms is the latest among worrying developments that might force away voters and, worse still, precipitate violence.

With this in mind, Newsweek spoke to a number of experts in voter intimidation, election and firearm law to find out the legalities of firearm possession and brandishing at polling centers and near voting boxes.

Theresa Lee, the litigation director and clinical instructor at Harvard Law School, told Newsweek that there was no law that specifically allowed citizens or vigilantes to stand outside of polling stations with guns.

"I am aware of no state or federal laws that would permit this kind of behavior, and I think there are no such laws because they would run counter to laws that protect voters from harassment and intimidation as they exercise their most fundamental right, the right that the [U.S.] Supreme Court has described as 'preservative of all rights,'" Lee said.

Acts of "guarding" ballot boxes might infringe voter intimidation laws, which are protected at the state and federal level.

Laws Prohibit Intimidating Behavior

While the laws do not specify the carrying of firearms, they prohibit intimidating behavior that could influence the actions and choices of a voter.

Laws such as the KKK Act and Section 11 of the Voting Rights Act address voter intimidation directly, breaches of which, Theresa Lee explained, do not necessarily require the explicit expression of threats.

"For example, courts have found that people observing people and their license plates arriving at a polling place constitutes a violation of the KKK Act," Lee said. "And in that case, the people found liable were not carrying weapons.

"Numerous state laws also guard against harassment or intimidation at ballot boxes, both general intimidation statutes, generally housed within the criminal code, but equally applicable to any location, including ballot boxes and polling locations, and specific voting related enactments, generally housed within the state's election code."

Legal discussions on the brandishing of firearms at polling centers or election boxes are by no means a recent development.

Tim Carey, a law and policy adviser at the Johns Hopkins Center for Gun Violence Solutions, told Newsweek that since the 19th century, courts have long contended that guns should not be allowed near voting stations, adding that more recent legal opinion listed "legislative assemblies, polling places, and courthouses" as "sensitive places" where firearms can be constitutionally prohibited.

"Voter intimidation is illegal under federal law," Carey said. "More specifically, there are federal laws that make it a crime to intimidate, threaten or coerce a person, or attempt to do so, 'for the purpose of interfering with' that person's right 'to vote or to vote as he may choose.'

"It is also a crime to knowingly and willfully intimidate, threaten or coerce any person, or attempt to do so, for 'registering to vote, or voting,' or for 'urging or aiding' anyone to vote or register to vote. It is additionally a crime to 'by force or threat of force' willfully injure, intimidate or interfere with any person because he or she is voting or has voted or 'in order to intimidate' anyone from voting."

In the case of Maricopa County, Arizona state law further criminalizes voter intimidation, in step with federal guidance.

However, as Carey told Newsweek, the laws require "showings of intent to show criminality which can be notoriously difficult to prove in firearm brandishing cases."

In places like Arizona, with few or no limitations on open carry of firearms, prosecutors would need to show that the person carrying a gun sought to intimidate by carrying a weapon.

Even with these conditions in place, there still seem to be grounds for the possession of firearms at a polling center to potentially reach the threshold of voter intimidation.

Professor Betrall Ross, director of the Karsh Center for Law and Democracy, told Newsweek that "if a voter reasonably believes that the person guarding the ballot box poses a threat and therefore reasonably feels intimidated by that person guarding the ballot box, and therefore chooses not to vote for that reason, then that person guarding the ballot box has violated federal law. Whether the person guarding the ballot box has a firearm or not is not dispositive."

"The possession of a firearm may be evidentiary support for a finding that a person reasonably feels threatened or intimidated, but it is not a necessary condition for either. Based only on what I read and the images available online, I think that there is a strong case that a reasonable person would feel intimidated or threatened by the armed vigilantes in Arizona guarding a drop box. But it would ultimately depend on the proximity of the armed vigilantes to the drop box and perhaps the nature of any interactions between the armed vigilantes and voters."

The question of how far these ballot watchers are from the ballot box has additional relevance as some states, including Arizona, prohibit firearms at an "election polling place." Guidance issued by the Arizona secretary of state's office said that even properly licensed citizens are prohibited from breaching a 75-foot limit of any voting location with a weapon.

Arizona is not the only state to have this law. According to Georgetown Law, California, Florida, Georgia, Louisiana, Texas and the District of Columbia "explicitly prohibit guns at polling locations," while Mississippi, Missouri, Nebraska and South Carolina "prohibit concealed firearms at the polls. Guns may also be prohibited when polling locations are in K-12 schools and other property where firearms are not permitted."

In the case of the "guards" in Arizona, the Maricopa County Sheriff's Office told the media that they "were able to determine that the individuals were not breaking any laws and were more than 75 feet away from the ballot box, as required by law."

However, according to Carey, Arizona's proximity laws could yet provide helpful precedent for limiting the risk of voter intimidation through the brandishing of firearms.

"This case illustrates the need for states to pass similar location-based prohibitions to clearly signal to the public that there are certain places guns should not be," Carey said. "Intent-based voter intimidation statutes, though relevant to these situations, are not always the best remedies for firearm carrying cases in states with permissive public carry laws.

"That pairing of laws can confuse law enforcement and the public by making it unclear when particular gun-carrying behaviors cross the line into becoming unlawful. Location-based prohibitions, like Arizona's, provide an objective line for discerning lawfulness from an implementation standpoint. You either have a gun within the prohibited space or you do not."

So, while brandishing a firearm at a voting location might not break the law in all circumstances, the mixture of federal and state laws on voter intimidation combined with the law on carrying firearms at voting locations might act to limit the behavior, if not make it illegal.

As has been the case in Arizona, voters have already submitted complaints to investigate such behavior. Whether existing laws and restrictions will sufficiently dissuade others from arming themselves remains to be seen.

It is also unclear what the repercussions and consequences would be if such behavior, even if later deemed illegal, were to take place (potentially at greater scale) during upcoming elections.

Georgetown Law said that if you see or experience voter intimidation, notify your local election official at your polling place. Document what you saw or experienced, what happened, where and when, and whether you or any voters were deterred from voting. You can call Election Protection at 886-OUR-VOTE. If you fear imminent violence, call 911.