Judge allows federal law enforcement employees as poll monitors with restrictions

A federal judge in Washington, D.C., on Nov. 2 denied the NAACP’s request for a temporary restraining order barring the Department of Justice (DOJ) from using employees of federal law enforcement agencies as Election Day poll monitors, while also ordering the department to ensure its monitors are administrative or clerical staff rather than law enforcement officials.

U.S. District Judge Reggie Walton wrote in his memorandum opinion and order that his conclusion on irreparable harm “would differ” if the department were sending officials “who had the authority to arrest individuals,” and that his assessment of the NAACP’s claim “might differ” if the court were presented with additional facts.

Walton said he first found the plaintiffs’ filings “concerning” and potentially indicative of a violation of Section 11(b) of the Voting Rights Act, which bars intimidating voters. He said many of his concerns were “assuaged” by department counsel’s statements at a Nov. 2 hearing. Counsel said monitors would dress in business casual clothing, carry no firearms or visible federal insignia, and not speak to voters inside polling places. The DOJ also said that sworn agents or officers from the agencies at issue would be excluded.

Eric Neff of the government’s Civil Rights Division Voting Section said in an Oct. 28 declaration that personnel from the Bureau of Prisons, the Drug Enforcement Administration, and the Bureau of Alcohol, Tobacco, Firearms and Explosives would be deployed. In a second declaration, Neff said the department took “reasonable steps” to exclude certain sworn officers, the order says. Walton noted that the department did not object to an injunction requiring reasonable efforts to exclude sworn officers and said he did not think one was necessary, but he did order the department to comply with its lawyer’s commitments.

Under the order, monitors must not interfere with voters or election officials, must follow state and local rules, and may speak to voters only outside the polling place and only after the voter has cast their ballot. They must introduce themselves to election officials and carry federal credentials. 

The department had to file a status report by 7 a.m. Nov. 3 on how it confirmed that no monitor is a law enforcement official with arrest power. A footnote says Bureau of Prisons staff members who may arrest only for certain offenses tied to prison property or incarcerated people are not counted as having arrest authority for purposes of the order.

The NAACP and three individual plaintiffs sued Oct. 16, alleging that the monitor program violates the Voting Rights Act and that the department improperly dropped election-prosecution policies. Their emergency motion relied only on the Voting Rights Act, the judge’s order notes. 

The plaintiffs’ Nov. 1 motion called the plan a “whole cloth change” from past practice. Plaintiff Daniella Pierre said in a declaration that she is “genuinely fearful” of facing law enforcement agents at voting locations, the order says.

NAACP General Counsel Kristen Clarke said in a Nov. 2 news release announcing the motion that law enforcement agents “have no role and no right to be inside our polling places.” The NAACP said it learned of the plan through records obtained in a Freedom of Information Act suit.

Civil Rights Division head Harmeet Dhillon has said the department plans to send about 1,000 monitors to polling places in all 50 states, Zeale News reported Oct. 27. A department spokesperson, Kiersten Pels, told Reuters that monitors would not identify themselves as prosecutors and called the lawsuit’s concerns “unwarranted fear and baseless speculation.”