What distinguishes, if anything, the ominous presence of one or more partisan self-appointed possibly armed poll observers full of appraising stares, and the federal crime of voter intimidation? The text of 18 U.S. Code § 594. Intimidation of voters:

Whoever intimidates, threatens, coerces, or attempts to intimidate, threaten, or coerce, any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose, or of causing such other person to vote for, or not to vote for, any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner, at any election held solely or in part for the purpose of electing such candidate, shall be fined under this title or imprisoned not more than one year, or both.

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    Laws for poll watchers vary between states, so you may need to narrow it down. If you know a state where poll watchers are allowed to be 'self-appointed' and 'possibly armed' like you mentioned, perhaps ask about that? – Giter Oct 6 '20 at 3:17
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    @Giter, Great URL, thanks. Changed s/watchers/observers/, but of course the term observer also varies between states. Still the scope of the question is national, since the federal crime does not vary between states. For this Q. the most interesting states are swing states, or potential swing states. – agc Oct 6 '20 at 3:43
  • I know at least a few states limit how many people are allowed in polling sites at any given time, and I'm sure most if not all will have such limits due to the pandemic. Maybe you can ask if any states allow people to just hang around by the voting booths or loiter around the lines (particularly in a way that affects the voting process)? If there aren't any states where that's allowed, your question kind of becomes "what distinguishes local laws against voter intimidation from federal laws against voter intimidation". – Giter Oct 6 '20 at 4:11
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    Poll observers can't see who you voted for. – user253751 Oct 6 '20 at 9:43
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    I agree that intimidation can occur regardless of the terminology, but the answers thus far and some of the comments conflate or seem to group together different classes of "observers". i.e. in the broadest sense a poll observer could be a guy in a tree with a gun watching a polling station from one-quarter mile away (never interacting or seen by any voters). OTOH, in some jurisdictions, a poll worker hands out handbills to voters, but legally speaking in that same jurisdiction a poll worker is in the employ of the county and is handing ballots to voters or checking them in. – BobE Oct 6 '20 at 19:28

First, let's point out that this kind of 'poll watching' is not a new idea at all. Back in 1981, the Republican National Convention paid armed, off-duty police officers to surveil polling stations in districts with a large black and hispanic population, calling themselves the National Ballot Security Task Force.

Intimidating NBSTF signage from 1981

They were later sued by New Jersey and settled with a consent decree that prohibited this behavior. But that consent decree only applied to New Jersey, and expired in 2017 (after numerous attempts by the RNC over the decades to rescind it earlier), and is still credited with changing the outcome of the gubernatorial race. And need I mention the efforts at armed intimidation made by independent groups like the KKK during the Jim Crow and Civil Rights eras..?

Most states have electioneering laws that prohibit people from being within a certain distance of a polling station while ballots are being cast — anything from 30 to 200 feet — unless they are poll workers or currently casting their vote. Some states extend that moratorium to the people queued up waiting to vote, so that long lines of people are immune to direct harassment. Outside those limits there are no legal restrictions that apply, aside from the normal state restrictions that might apply to any public gathering. I expect that the felony charge of voter intimidation would only apply when someone is charged with normal intimidation (as defined by a given state) if that intimidation is aimed at someone queued up to vote. It's an add-on charge (similar to 'hate crime' charges) that merely increases penalties. Generally speaking, passive observation is not considered legal intimidation. One must take an action: brandish a weapon, make verbal comments, obstruct progress or entry, or otherwise actively interfere with a person's ability to enter the polling station and cast a vote.

The best solutions to this kind of passive intimidation are the same ones that have been used by abortion clinics against the intimidation tactics of anti-abortion protesters: information and guides. If I were in the position of the Democratic Party, I would coordinate a large group of 'Poll Walkers' (pardon me for making up terms) who would stand outside polling stations informing people they have a legal right to vote, and that any ostensible poll watchers have no legal standing to interfere. Such poll walkers could act as a shield between voters and any intimidation efforts. Intimidation relies on making people feel isolated, alone, and afraid; the moral support of even one person can dramatically reduce its effects. Of course, guides would have to obey federal, state, and local regulations themselves, which is why coordination by a large organization like the DP would be advantageous. But the question here seems to be the age-old question of "Who watches the watchers?"; and the obvious answer is "We do."

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    So you're saying that those who deploy many of these observers are knowingly making a bad faith attempt to intimidate voters... but just short of the letter of the federal law. – agc Oct 6 '20 at 18:25
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    @agc: Are you asking me for my opinion? I think — using inferential logic — that (a) the problem of voter fraud is statistically non-existent, (b) the proposed 'poll watcher' solution is an immense investment of resources and manpower, and (c) that no one invests that much without expecting a commensurate reward. Since preventing (practically non-existent) voter fraud is not a reward commensurate with the expenditure, they must be expecting some other reward, and the list of rewards to be obtained from these actions is fairly short. – Ted Wrigley Oct 6 '20 at 18:51
  • Well, that's just logic, and not really an opinion at all, isn't it? This answer would benefit from incorporating your last comment with those plausible inferences, as well as specifying the possible rewards short list. – agc Oct 6 '20 at 19:04
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    @user253751: there is already a well-established and effective system in place for preventing voter fraud. Partisan groups gathering outside of polling places to watch people as they enter and leave adds nothing to the formal process of vote-checking; it its purely intimidation. We might put the best face on it and say that such people are only trying to intimidate fraudsters (to scare cheaters away from polling places). But again, the incidence of such fraud is vanishingly small, and is handled well by the formal structures already in place. – Ted Wrigley Oct 7 '20 at 16:49
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    @user253751: the only real value added from such partisan groups is the (arguably secondary and incidental) intimidation of people trying to cast valid votes. Mobs of people (armed or not) are frightening, and many perfectly innocent citizens will avoid them. There is no net gain in terms of democratic institutions; there is a distinct net gain in terms of partisan voter suppression. Please do the math. – Ted Wrigley Oct 7 '20 at 16:53

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