Voter intimidation has been one of the chief concerns of election officials across the country this year, particularly in light of Donald Trump’s baseless claims that the election will be rigged.
Now, as votes pour in today, there will be 500 Justice Department representatives in 28 states, monitoring the polls. Both sides of the aisle have conscripted their own poll watchers to ensure everything stays above board at precincts across the country. The Lawyers’ Committee will be running its Election Protection hotline, should anyone run into trouble. And Clinton’s campaign has even formed its own customer service group inside the Brooklyn headquarters, designed to help voters report any irregularities throughout the day.
All of these resources are available to help voters deal with would-be bullies.
But what about the voters who stumble upon a misleading Tweet, pretending they can vote by text? Or a doctored photo designed to look like Immigrations and Customs Enforcement officers are arresting immigrants at their polling places? Or the hashtag #VeritasIsEverywhere, created by conservative activist James O’Keefe, which Trump supporters are using to tell voters today—erroneously—that bussing people to the polls is a form of voter fraud. What recourse do voters have for such digital forms of voter intimidation and misinformation?
The answer: not much.
Federal law prohibits any efforts to intimidate, threaten, or coerce voters “for the purpose of interfering with the right of such other person to vote or to vote as he may choose.” States have their own laws with further restrictions on things like, for instance, how close you have to be to a polling place to be guilty of intimidation. But most of the time, says Zachary Clopton, assistant professor of law at Cornell University Law School, law enforcement can diffuse these situations before they ever make it to court.
Online it’s trickier. “It’s not so clear what the online analogy is to an officer showing up and asking someone to step back from the polling place,” Clopton says.
The laws around voter intimidation, in other words, have yet to catch up to the pace of digital communication. But they need to. “My suspicion is this is going to be a big area of concern in future elections,” Clopton says.
According to afar-from scientific informal poll WIRED conducted of our Twitter followers, 19-percent of the 2,800 or so people who voted reported encountering some form of voter intimidation online this election. But proving that would be hard. Voter intimidation cases are notoriously tough to prosecute, because they all require proof that a person actually intended to influence a voter one way or another. Establishing that influence was the explicit purpose is always the hard part. But it becomes even harder when alleged intimidation isn’t even playing out in the physical world. Online the problem becomes an issue of policing speech. “There’s still a big open question about the First Amendment, which is: how much speech can be criminalized because it seems to be for purposes of intimidation or coercion before it abridges a person’s free speech rights?” Clopton says.
And because state laws often dictate conduct within that state, the law still doesn’t adequately address what happens when a voter in one state attempts to intimidate voters in another state online.
Of course, not all efforts to influence voters involve outright intimidation, either. Most recent high-profile examples include efforts to intentionally give voters misleading information that could interfere with their ability to cast a ballot. But today, according to University of California, Irvine School of Law professor Rick Hasen, there are no federal laws that prohibit the spread of misinformation with regard to voting. As a Senator, President Obama did introduce legislation that would restrict this kind of behavior, but Congress never signed it.
“I argue that lies about where and how to vote should be illegal and constitutional to limit,” Hasen says, “but that lies about campaigns—Candidate X is a murderer—would not be. ”
All of this means that for voters, the first line of defense against these disinformation campaigns is the media. This year, ProPublica, Google, and an assortment of news organizations and journalism schools have launched a project called ElectionLand, aimed at reporting irregularities at polling places, as well as debunking hoaxes that spread online. Jessica Huseman, a fellow at ProPublica, was one of the reporters who helped determine that a viral photo of immigration officers arresting people at the polls was a fake. The ElectionLand team also debunked a video that purported to show Democratic campaign workers stuffing ballot boxes.
“The point of this is to be able to respond to issues that have effected people’s ability to vote in real time,” Huseman says.
It also comes down to how the social media platforms themselves choose to deal with this activity. Last week, Twitter suspended the account of a user who was spreading lies about voting by text. While the platform can’t likely catch every incident, a Twitter spokesperson said the platform is “tweeting now, and through Election Day, informing people how and where they can vote.”
But in order to truly curb this kind of election tampering, Clopton argues, the laws that have long served to dissuade voter intimidation need a major facelift. “Lawmaking bodies need to think about this,” Clopton says. “If they conclude the old laws are good enough, that’s fine, but they can’t bury their heads in the sand and pretend this stuff isn’t happening.”
Because it is, and it seems unlikely to stop. Watch out online today.