VOTER INTIMIDATION INTEXAS DURING THE 2020GENERAL ELECTION

BY JUDY BAO FOR TCRPFEBRUARY 2021

A military-grade vehicle adorned in partisan stickers and skull imagery sits in a Texas polling place parking lot.. Photo credit: TCRP

Table of Contents

1 Foreword

2 Introduction

4 Voter Intimidation Incidents Documented in 2020 & Response

8 Recommendations

10 Endnotes

ForewordOn the morning of January 6, 2021, as rioters headed to Washington, D.C., voting rightsadvocates celebrated a high-turnout election in Georgia on the heels of the highest turnoutpresidential election since 1900. That afternoon, after the sitting president gave a speechinsisting again (without evidence) that the presidential election was “stolen” from him, a mobattempted to alter the democratic election results by force. They were egged on by then-President Donald J. Trump — who continued to express “love”for the rioters even after they breached the walls of the Capitol — as well as by other highranking government officials, Texas Senator Ted Cruz and Texas Attorney General KenPaxton among them. We now know that scores of other lawmakers and law enforcementofficials participated in the coup too, including from Texas, and that several members of theCapital police aided the rioters.

There’s a part of the brain that seeks out the story of how this moment was the culminationof something contained to the last four years. But violence in response to more participatorydemocracy has been a feature of American politics since the end of the Civil War, and weneed to reckon with this truth to make our future different from our past.

Google “The Camilla Massacre” or “Kirk-Holden War” or “Battle of Liberty Place.” Thenremember Bloody Sunday in March 1965. After the 1964 Civil Rights Act had been passed,state-sponsored violence rained down on protestors, including the late John Lewis,marching against the denial of voting rights to Black Americans in Selma, Alabama.

The voting rights movement achieved its largest legislative gains in the 1960s — andexperienced some of its biggest setbacks in the last decade. These rollbacks have beenparticularly acute in the states of the old confederacy, like Texas, where our Black and Latinxvoters have lost the protection of the Voting Rights Act of 1965. The disturbing events in this report took place during the October and November 2020election. While some federal officials conducted interviews and collected evidence, toomany local election administrators could not or would not deescalate the actual, corporealsituations — and the voters most likely to be intimidated were the least likely to trust thepolice anyway, for reasons confirmed in part on January 6. Considering those circumstances,these 150-year-old circumstances, communications people like me worked to keep theperpetrators from getting media attention in real time, because we feared they would gainthe numbers to turn into modern day lynch mobs.

These stories have to be told for posterity, but they had to wait until everyone got homesafely. I hope readers are understanding of the delay, and of the urgency in this report. Everybranch of government is complicit, and the work is far from over.

Ivy LePress Manager, Texas Civil Rights Project

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Introduction

We are Texas Lawyers for Texas Communities: the Texas Civil Rights Project(TCRP) believes in a state where everyone can live with dignity, justice, andwithout fear. In its thirty-year history, TCRP has brought thousands of strategiclawsuits and spearheaded advocacy to protect and expand voting rights,challenge injustices in our broken criminal justice system, and advance racialand economic justice for historically marginalized communities.

TCRP’s Voting Rights Program tackles the systemic issues that suppressdemocratic participation in Texas — from voter registration to the moment whenan individual casts their ballot. Through litigation and advocacy, TCRP fights toturn the tide on the state’s abysmal voting rights record by removing barriers tovoter registration, supporting grassroots voter mobilization efforts, and opposingnew attempts to suppress voting.

As a critical part of that work, we participate in the Texas Election ProtectionCoalition, which includes dozens of nonpartisan organizations working togetherto ensure that every eligible voter in Texas can cast a ballot that is fairly andaccurately counted. Via phone calls to the national 866-OUR-VOTE voterprotection hotline, reports from thousands of volunteer poll monitors across thestate, and posts from voters on social media, we work to empower voters withthe information they need to vote and help them to overcome problems thatarise during the voting process. In the 2020 General Election, the Coalitionfielded nearly 10,000 reports from voters with questions they had about votingand issues they encountered when exercising this most fundamental right.

This report is one of a series that TCRP is publishing that will analyze trends thataffected Texas voters during the 2020 election. We hope that these reports willaid advocates, researchers, and policy makers in their ongoing work to improveour state’s democracy; increase public awareness of our election administrationsystems and build public support for pro-voter reforms; and ultimately lead togreater access to voting for all Texans, especially communities who havetraditionally been excluded from the franchise, such as people of color andpeople with disabilities.

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About the Author

Judy Bao is a first-generation Chinese immigrant and attorney with a passion forpublic interest work. She has worked on voting rights, discrimination, FirstAmendment and other civil justice issues. She graduated from the University ofMichigan Law School and hopes to make the world a little better than she foundit.

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Voter Intimidation Incidents Documented in2020 & Response

Every voter has the right to vote free from any form of intimidation. Voterintimidation strikes at the heart of a free and fair election, by frustrating theability of every citizen to express their will at the ballot box and hold publicofficials accountable. From poll taxes to literacy tests to open hostility andviolence, voter intimidation has long been a tool of voter suppression in theUnited States, disproportionately affecting voters of color, especially Blackvoters. With that dark, continuing history, protecting the right to vote againstvoter intimidation requires steady vigilance.

There are many types of voter intimidation, but generally any conduct thatdeters a voter from voting or from voting for their preferred candidate—even ifthe actor does not intend for the conduct to be intimidating—could beconsidered voter intimidation. Voter intimidation is illegal and prohibited by anumber of federal and state laws. The 2020 election saw a surge in voterintimidation that will require a vigorous response from policymakers beforesimilar conduct threatens the 2022 midterm elections.

2020 Voter Intimidation Incidents

During the 2020 election, the non-partisan Election Protection coalition received267 reports of voter intimidation in Texas. Notably, a large portion of thesereports were about armed citizens or organized demonstrators close to pollinglocations. For instance, on the second day of Early Voting, a concerned voter inTarrant County reported that she saw another voter in line with a gun and heardhim say, “I’m going to need it if this vote goes wrong.” When the concerned voterinformed the election official, they laughed and took no further action. On thesame day, another voter in Bexar County reported that three big trucks withTrump campaign flags and posters, and people standing in the back of the truckbed, were driving around the neighborhood surrounding a polling place, makingseveral passes in front of the polling place going at very slow speeds. The voterreported that the caravan made people standing in line, who were primarilyLatinx and Black, feel very uncomfortable.

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On October 29, 2020, a parade of cars and military-style trucks gathered in theparking lot of a Fort Bend polling location as part of the MAGA Drag the Interstateevent. Well over 100 people gathered outside of the polling location withloudspeakers, bullhorns, and a coffin.

[Photo: Military-style truck in the Fort Bend County polling location’s parking lot]

Incidents of voter intimidation only intensified on Election Day. In Hidalgo County,we received a report of two men with visible firearms walking around a pollinglocation and speaking with voters—despite clear signs that stated no firearmswere allowed at the polling location. In Tarrant County, our volunteers witnesseda group of men with bulletproof vests and rifles gathered across the street from apolling location who could be seen by voters. In Montgomery County, severalvoters and volunteers reported that a caravan of approximately 25 vehicles withTrump flags and loudspeakers drove to multiple polling locations and gathered invarious polling locations’ parking lots. Demonstrators played loud music, shoutedpro-Trump messages, and, at times, blocked access to polling locations. At leastone witness reported seeing a demonstrator with a gun. Likewise, in HarrisCounty a large group of demonstrators gathered outside a polling location andused loudspeakers and bullhorns to yell pro-Trump messages and profanity.

Across the state in El Paso, a volunteer reported that a border patrol truck hadbeen parked next to a polling location for several hours and that a border patrolagent had been seen inside the truck. Throughout the state, we received reportsfrom numerous voters and volunteers about increased law enforcementpresence at polling locations, which can itself be intimidating to voters.

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As illustrated by the table below, voter intimidation during the 2020 GeneralElection was widespread and voluminous.

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Responses to 2020 Voter Intimidation

In response to Early Voting voter intimidation reports, TCRP, along with some ofits partners--Protect Democracy, the American Civil Liberties Union of Texas, theNAACP Legal Defense and Educational Fund, and the League of Women Votersof Texas--sent a letter about voter intimidation by armed citizens to everyelection official in Texas and to county judges for the 25 most populouscounties. TCRP and partner organizations notified the counties of the reports wereceived, provided an overview of relevant federal and state law regardingarmed citizens and militias, and provided guidance on how to deal with theseincidents. TCRP also met with county attorneys in some counties with a highnumber of voter intimidation incidents.

Despite these efforts, it became clear on Election Day that not all counties wereprepared to de-escalate incidents of voter intimidation. After receiving reports ofvoter intimidation and verifying facts with voters and volunteers, TCRP contactedcounty officials and urged them to take action. Mindful that law enforcementpresence can itself be intimidating to voters, TCRP emphasized that lawenforcement involvement should be used discreetly to de-escalate the situation.Some counties sent county officials to investigate the incident, contacted the on-site election judge, or dispatched law enforcement. At least one armed citizenwas arrested and removed from a polling location. Some law enforcementagencies, most notably in Montgomery County, arrived at the scene but failed tode-escalate the situation, including declining to enforce state law that prohibitedloudspeakers being used during voting for political purposes within 1,000 feet ofpolling locations. Many other counties responded by saying that they would relaythe information about voter intimidation internally, but failed to take anynoticeable remedial actions. Incidents of voter intimidation persisted throughoutElection Day.

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Government officials must take steps—before, during, and after an election—todeter and stop voter intimidation. Federal voter intimidation laws have long beeninterpreted to require localities, such as counties, to protect voters fromintimidation. A county’s failure to do so may expose the county to potential legalconsequences. For instance, a federal court in Louisiana found that Bogalusa,Louisiana failed to take reasonable measures to protect the Bogalusa Voters’League from Ku Klux Klan violence. The court ordered the chief of police topublish a plan to rectify the failure to protect, including implementing a chain ofcommand and system for responsibility and written instructions for policeofficers to provide adequate protection for voters.

More importantly, a county’s failure to protect voters from intimidation onlyperpetuates the particular harm these incidents inflict on voters of color,especially Black voters. Many incidents—including those reported in the 2020election—target polling places frequented by primarily Black and Latinx voters.Likewise, even law enforcement itself has a history of suppressing the Blackvote, including (and infamously) in the South during Jim Crow.

Before voting begins, government officials should prepare plans for possibleincidents of voter intimidation and train relevant officials as necessary. Theseplans should include using law enforcement as discreetly as possible and in away that resolves the issue quickly and without escalation. Not only would theseplans help ensure voter intimidation does not deter people from voting, but itwould also help counties comply with federal law. Counties should also issuepublic statements that state voter intimidation will not be tolerated and educatevoters on what constitutes voter intimidation. These public statements shouldprovide examples of voter intimidation, such as harassing voters, blockingaccess to a polling location, threatening to call the police or immigration officialsbased on a person’s voting activities, trying to examine someone’s ballot,threatening to call a voter’s employer based on their support for a candidate,and other similar actions.

Recommendations

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Further, counties should inform citizens that voter intimidation can be committedby anyone, including private citizens, private militia groups, candidates, lawenforcement, election officials, and other government actors.

Further, government officials should enforce existing federal and state laws thatprohibit voter intimidation. To start, counties must be more vigilant in enforcingthe prohibition on having firearms at polling locations, including, at a minimum,posting signs at polling locations that explain that firearms are prohibited even ifa citizen has a conceal and carry license. In addition, an easy law to enforce isthe Texas law prohibiting the use of sound amplification devices within 1,000 feetof polling locations for political purposes during voting. As noted above, TCRPreceived several reports of demonstrators using loudspeakers within 1,000 feetof polling locations during the 2020 election season, and yet numerous countiesdeclined to enforce the state law prohibiting such behavior.

Should local officials be unwilling to take action against voter intimidation, thenstate and federal officials, and advocacy organizations, should pursue viablelitigation against those who intimidate voters and those who fail to protect voters.If people who intimidate voters do not face the consequences provided for underthe law, they will be further emboldened and continue to intimidate voters,ultimately with dire consequences for our democracy.

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ENDNOTES

1 Linda So et al., Off-duty cops, other officials face reckoning after rallying for Trump in D.C.,Reuters, (Jan. 13, 2021), https://www.reuters.com/article/us-usa-trump-protest-officials-insight/off-duty-cops-other-officials-face-reckoning-after-rallying-for-trump-in-d-c-idUSKBN29I315.

2 Andrew Gumbel, America’s shameful history of voter suppression, The Guardian (Sept. 13, 2017),https://www.theguardian.com/us-news/2017/sep/13/america-history-voter-suppression-donald-trump-election-fraud; Terrance Smith, Timeline: Voter suppression in the US from the Civil War to today,ABC News (Aug. 20, 2020), https://abcnews.go.com/Politics/timeline-voter-suppression-us-civil-war-today/story?id=72248473.

3 The Ku Klux Klan Act of 1871 makes it illegal either (i) to engage in a conspiracy to injure orintimidate voters or (ii) to have knowledge of such a conspiracy and the power to stop it but fail to do so.42 U.S.C. §§ 1983(3), clause 3, 1986. The Civil Rights Act of 1957 makes it illegal to intentionally intimidatevoters. 52 U.S.C. § 10101(b). The Voting Rights Act of 1965 makes it illegal to intimidate voters, regardless ofwhether someone acted with an intent to intimidate. 52 U.S.C. § 10307(b). Texas state law also prohibitsvoter intimidation. Tex. Penal Code §§ 42.07, 46.03(2); Tex. Elec. Code §§ 276.001, 42.01(8).

4 After TCRP informed the county that this is a possible violation of federal law prohibiting thepresence of federal troops at polling locations, 18 U.S.C. § 592, the border patrol truck was moved.

5 See Hicks v. Knight, Civ. No.15,727 (E.D. La.), 10 Race Rel. L. Rep. 1504, 1507-09 (1965); see also U.S.by Katzenbach v. Original Knights of Ku Klux Klan, 250 F. Supp. 330, 342 (E.D. La. 1965) (citing Hicks, notingthat the police had “fail[ed] to use all reasonable means to protect” citizens from assault, harassment, andintimidation when exercising their civil rights, and observing that such conduct constitutes unlawfulintimidation). The Department of Justice has pursued consent decrees seeking to impose similarrequirements in other jurisdictions as well. See Hearing on the U.S. Commissioner System Before theSubcomm. On Improvements in Judicial Machinery of the S. Comm. on the Judiciary, 189th Cong. 138-39(1965) (available at https://bit.ly/2UZGsj6) (describing DOJ consent judgment in United States v. Mathewsthat enjoined defendants “from refusing reasonable police protection to any person in need thereof” whenexercising the right to vote or encouraging others to exercise the right to vote).

6 Tex. Penal Code § 46.03(2).

7 Tex. Elec. Code § 61.004

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