Within the space of 12 hours on Election Day 2016, the Election Protection hotline received calls from 85 voters in 28 states who reported seeing guns at the polls. This year, that threat is heightened. Gun sales have skyrocketed to all-time highs during the pandemic, especially among first-time owners. The line between poll watching and voter intimidation has blurred, as Republicans are officially conscripting citizens for an “Army for Trump,” and there’s been a rise in the activity of armed, far-right gangs that have already brandished semiautomatic weapons at protests this year. In addition to quashing turnout, the presence of guns poses a real threat of violence. According to Giffords Law Center’s website: “Guns at the polls are a tinder box near an open flame.”
In response, Michigan Secretary of State Jocelyn Benson just announced a directive that affirmatively forbids individuals from carrying guns into polling places on Election Day. But other competitive swing states, which remain the focus of voter drives by both parties, are still without such official pronouncements. As threats of armed voter intimidation loom, with the intent to lower turnout among certain communities on November 3, gun reform groups are hoping those states’ attorneys general will pass similar laws. In either case, poll workers will likely be the first line of defense.
Benson’s announcement in Michigan prohibits the open carry of firearms within 100 feet of entrances to polling places, clerks’ offices, or absentee-vote-counting sites. With that ruling, Michigan joins only six other states—Arizona, California, Florida, Georgia, Louisiana, and Texas, plus the District of Columbia—to expressly ban guns at the polls, even though 45 states allow open carry in some form.
A joint report from Guns Down America and the Coalition to Stop Gun Violence suggested that similar action should be taken by four other key states, which all allow open carry: Pennsylvania, North Carolina, Wisconsin, and, while no longer viewed as a critical battleground state, Virginia. All four states, the report details, have the constitutional power to ban guns at polling sites. They all have explicit laws against voter intimidation, and, though some are more explicit than others, laws that prohibit or deter open carry on sites that are often used as polling places, such as schools.
But Virginia and North Carolina have broader “preemption laws,” meaning they allow local tweaking of open-carry laws to a much greater degree than Pennsylvania or Wisconsin, whose laws are harder for local governments to change without state-level amendments. Pennsylvania’s law states: “No county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition or ammunition components when carried or transported for purposes not prohibited by the laws of this Commonwealth.”
While these potential state directives would guard against any openly armed individual, the principle targets are the armed groups that often call themselves militias but are essentially domestic terrorist organizations, says Kris Brown, president of Brady: United Against Gun Violence. Recently the FBI stopped an attempt by 13 members of one of these paramilitary groups, Wolverine Watchmen, to kidnap and possibly murder Michigan Governor Gretchen Whitmer.
Georgetown University’s Institute for Constitutional Advocacy and Protection has been studying such groups, and on a recent press call its legal director, Mary McCord, said they have been active in just about every state, and claimed that their existence is not legally protected. “Of all the gray areas in the Second Amendment,” she said, “this is not one of them.” Though the Second Amendment protects a “well-regulated militia,” McCord said that refers to one summoned by the government, such as the National Guard.
Supreme Court cases from 1886 and 2008 decided that states may ban unauthorized paramilitary activity—and all 50 have done so, via state constitutions or statutes. “I think a lot of the reason we haven’t seen a lot of enforcement action has been the mythology about the Second Amendment, that somehow it protects this activity, particularly in an open-carry state,” McCord said. “And so, I think just correcting the record about that is very, very important.”
Whether or not laws are passed, the onus will likely be on poll workers to scope out armed intimidation, deescalate conflicts, and report sightings of firearms. If states fail to pass laws, the responsibility comes down to state election commissioners to ensure all poll workers are effectively trained. But, Brown says, “It’s harder to do it if there’s not a bright-line rule by the state that you just can’t bring guns to polling places at all.”
In an email, Tracy Wimmer, director of media relations for Benson, said gun-carrying voters would be asked to leave their weapons in their cars, and if they refused, law enforcement would be called. Michigan’s directive officially states that it’s now down to “election inspectors”—poll workers—to contact law enforcement if the new rule is violated. But, gun-toting police at the polls can also be menacing for many voters of color (an armed Miami officer was recently seen displaying a Trump 2020 mask while on duty at a polling site).
Brady, which released an action checklist with the other two gun reform groups, is instead advising workers across states to report gun sightings to the Election Protection hotline, which would allow a volunteer to contact the necessary local election officials. If the case were then to escalate to the courts, McCord said, “There would be a balancing between the government’s compelling interest in protecting people’s right to vote and the individual’s interest in his own self-protection.”
As a long-term fix, Brady advocates for generally stronger permit laws, both for open and concealed carry. (Brown says that in the realm of voter intimidation, open carry is somewhat more unsettling, because an exposed gun poses an open warning.) The organization is firmly against the mindset of the National Rifle Association—which said the Michigan directive was “simply the latest scheme to inconvenience law-abiding citizens and erode their right to self-defense”—that guns everywhere make us safer.
“The real question I have is why anyone thinks they need a gun at a polling place,” she says. “These aren’t Wild West shootouts. These are highly secured public places. It’s not in the back of a dark saloon in the basement.”