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What Should You Do if You See a 'Militia' at Your Polling Site?

LANSING, MI - OCTOBER 17: The Boogaloo Boys hold a rally at the Capitol Building on October 17, 2020 in Lansing, Michigan. The Boogaloo boys called it a Unity Rally in an attempt to distance themselves from the Wolverine Watchmen who plotted to kidnap Michigans Governor Gretchen Whitmer. Two of the men arrested in the plot were affiliated with the Boogaloo Boys. (Photo by Seth Herald/Getty Images)
By Richard Dahl on October 27, 2020 1:28 PM

The rise of self-styled, armed “militias" appearing at street protests this year raises concerns that these same groups will be appearing at polling sites on Election Day.

Some have even pledged that they will be present at these sites.

Can they do that?

Of course, they can. The more important question, though, is: What can they legally do at polling sites?

But before we try to answer that question, it is important to point out something that has often been overlooked during this crazy year: Citizen militias in the U. S. are probably not legal.

A lot of legal experts, at least, are making that point.

Mary McCord, a former Justice Department official who now heads the Institute for Constitutional Advocacy and Protection at Georgetown Law Center, is one of them. “(T)hese armed groups have no authority to call themselves forth into militia service," she wrote recently in a New York Times op/ed piece. “The Second Amendment does not protect such activity, and all 50 states prohibit it."

Adam Winkler, a law professor at UCLA who specializes in constitutional law and gun policy, told U.S. News and World Report, “(T)hese self-appointed militias have no relationship with the state government whatsoever, no authority to speak for the state or the people of the state."

If They're Not Militias, What Are They?

OK. So, maybe “militia" is technically the wrong term for these groups since they are not connected to government or law enforcement.

But since the U.S. Supreme Court ruled on District of Columbia v. Heller in 2008, we now recognize an individual right to keep and bear arms for lawful purposes such as self-defense. So maybe we can call them “groups of lawful firearms enthusiasts."

Whatever we call them, they've certainly become visible this year in places like Kenosha, Wisconsin, and Portland, Oregon, as well as many other parts of the country. In all, 45 states allow some degree of open carrying of firearms, although restrictions vary from state to state.

Only six states (plus Washington, D.C., and Puerto Rico) explicitly ban guns at polling places, and four states don't allow concealed weapons.

While a lot of states do allow guns at polling sites, there is nevertheless a federal law that bans voter intimidation at polling sites. So it's possible that at some polling sites, something has to give.

What Constitutes Intimidation?

Is the mere presence of a gun intimidation? What if there's a bunch of people carrying guns? What if they're wearing uniforms and appear menacing?

Truth is, this is a gray area.

But if you see groups fitting this description when you go to the polls, there are things you can do, or at least take into consideration. To help people seeking guidance in this area, Georgetown Law Center's Institute for Constitutional Advocacy and Protection has issued a “voter intimidation fact sheet."

This fact sheet points out what kinds of behavior might qualify as intimidation. These include confronting voters, brandishing firearms, issuing verbal threats, and disrupting voting lines.

The Center also provides a state-by-state fact sheet detailing the specific laws in all 50 states.

Keep Your Eyes Open and Take Notes

The fact sheets provide recommendations on what to do if you see armed groups that might be intimidating voters. It recommends making note of everything you see: What are they doing? Are they behaving as though they're law enforcement? What kind of uniforms are they wearing? What kinds of firearms are they carrying? Do they appear to have a leader?

It's important to keep in mind that even though the law might allow them to carry firearms, they cannot intimidate voters.

In some jurisdictions, officials have said intimidation by armed groups will not be tolerated. In Philadelphia, for instance, District Attorney Larry Krasner said that his office “intends to make sure that there is no threatening presence" at the polling sites and encouraged anyone who witnesses voter suppression to phone the office's Election Task Force Hotline (215-686-9641).

In addition, a national nonpartisan coalition called Election Protection provides a hotline for voters in any state to call if they witness voter suppression. That number is 866-687-8683.

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