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Guns, Militias, and the 40’ Rule: Understanding Virginia’s Voter Intimidation Laws

A voter walks toward polling location
A voter enters a polling place in a presidential primary in February. (Crixell Matthews/VPM News)

In Alaska and Florida, Democrats got emails warning them to vote for President Trump -- or else. In Pennsylvania, the Trump campaign videotaped people as they dropped off ballots in drop boxes. And in Virginia, early voters in Fairfax County last month were met with a group of chanting Trump supporters that left some voters seeking escorts.

A raft of ominous headlines have Virginia election observers on high alert for voter intimidation. Here’s what you need to know about Virginia’s laws.

1. Campaigning is allowed -- from a distance.

State law allows people to campaign outside polling locations as long as they abide by certain rules:

  • No electioneering or campaigning within a 40 foot distance from the entrance of the polling station
  • No loudspeakers within 300 feet of the entrance
  • No behaving in a “noisy or riotous manner at or about the polls.”

John March, a spokesman for the Republican Party of Virginia, said the Fairfax supporters obeyed those rules.

“They were just out there, on public property, supporting their candidate,” March said.

Virginia’s Democratic Attorney General, Mark Herring, was less convinced, calling their actions “potential illegal voter intimidation.” The event led him to draft an opinion outlining rules on voter intimidation. 

“If threats are used to stop a person from voting or to make them change their vote, that's voter intimidation,” Herring said.

2. Firearms aren’t specifically banned.

Firearms are not allowed at some common polling locations like schools and courthouses. A new state law allows municipalities to limit firearms inside city buildings -- a step Richmond has already taken -- but there’s no blanket ban on guns at the polls. Herring’s opinion notes that brandishing a weapon “in such manner as to reasonably induce fear” is illegal.

Man with assault weapon stands by line of people
Gun rights advocates, militia members, and others gathered last July for the General Assembly's special session on gun violence. (Crixell Matthews/VPM News)

3. There’s “no role” for militia groups in the election process.

Armed militia groups have popped up across the state. Some have been involved in violent confrontations, including the 2017 Unite the Right rally in Charlottesville.

Virginia is at “moderate” risk of seeing militia activity surrounding the upcoming elections, according to a report released on Wednesday by ACLED, a nonprofit data-mapping project, and the research group MilitiaWatch. Their report follows news that extremists briefly discussed kidnapping Gov. Ralph Northam

“Virginia has continued to be a major target throughout the summer, with at least nine militias active in recent months,” the report says, noting groups that include the far-right Boogaloo Bois.

John Jones, director of the Virginia Sheriff’s Association, said there was “no role for militia groups to enforce anything at a polling place.”

“No one has the authority to take on the role of a sheriff or a law enforcement officer,” Jones said. “That duty is not substituted by any militia group, and it won't be tolerated.”

Herring agreed. “It's illegal for any private group to act as actual law enforcement,” he said.

Mark Herring talks to person outside
Mark Herring at a press conference last year. (Crixell Matthews/VPM News)

4. Official poll observers have a limited role.

In the first presidential debate, President Trump urged his supporters to “go into the polls and watch very carefully,” adding kindling to fears about voter intimidation.

Wise County registrar Allison Robbins, who also heads the Virginia Registrar’s Association, said pre-approved “authorized representatives,” including lawyers and volunteers from both parties, are allowed inside polling stations to monitor what happens and report possible problems to election officials.

“They are allowed to be inside the polling place and observe the process, but they’re not allowed to work inside the polls or interfere in the election process,” Robbins said.

Herring said state law is clear about the role of these election observers: “They cannot wear any kind of campaign paraphernalia, they cannot campaign inside the polling place, they cannot engage voters.”

Samantha Cotton, a spokesperson for the Trump campaign, said their poll watchers received “rigorous training” in state law and were onsite to make sure “no legally eligible voters are disenfranchised, that all votes are accurately and legally tabulated.”

“We make it very clear to volunteers they need to be respectful and polite and are not there to be intimidating,” Cotton said.

The campaign is deploying 50,000 poll watchers across the U.S. after the lifting of a consent decree established after past GOP voter intimidation tactics targeted Black Americans. 

5. There are several resources if voters see something amiss.

There have been reports of voter intimidation in past Virginia elections, according to Tram Nguyen, co-director of New Virginia Majority. The advocacy group is part of a consortium that runs a nonpartisan election protection hotline.

In 2012, a group of mostly elderly Korean American voters were shuttled to a separate line at a polling place in Fairfax County when workers grew impatient with their limited English proficiency. In 2016, the hotline received calls about an elderly Asian woman, also in Fairfax, who fled a polling location after people surrounded her and demanded to see her documentation.

“Things like this happen all the time, where...sometimes folks just don't feel safe, or they encounter situations at the polling place that give them pause,” Nguyen said.

Neither Nguyen nor Herring said they had heard accounts of possible voter intimidation this year since the Trump rally in Fairfax.

In addition to the election protection line, which offers services in a number of languages, voters can report complaints of voter intimidation on the Department of Election’s website or by phone at (800) 552-9745.

Robbins, the Wise County registrar, said voters’ best first step is to contact local election officials or, if they feel in imminent danger, law enforcement.