As Democrats warn their supporters of voter suppression efforts and Donald Trump urges his followers to watch polling areas, lawyers from both sides are filing fiery legal briefs and laying the groundwork for potential challenges Election Day.
In states such as Ohio, Pennsylvania, Arizona and Nevada, lawyers for state Democratic parties are in federal court alleging that the Trump campaign and others are “conspiring to threaten, intimidate, and thereby prevent minority voters in urban neighborhoods from voting in the 2016 campaign.”
They are asking for a temporary injunction to block “such conduct” through Election Day.
In legal briefs, they quote Trump from a speech last August. “I hope you people can…not just vote on the 8th, [but also] go around and look and watch other polling places and make sure that it’s 100-percent fine,” Trump told an audience in Pennsylvania.
“Immediate relief is necessary,” Donald J. McTigue, a lawyer for the Ohio Democratic Party argued in court papers filed in the Ohio case. McTigue said that the defendants’ including the Trump campaign, the Ohio Republican Party and Trump supporters are engaged in a “coordinated campaign of vigilante voter intimidation” and in violation of the Ku Klux Klan Act of 1871 and the Voting Rights Act of 1965.
For McTigue, the stakes are high. “There are only nine days left until Election Day, and early in-person voting in Ohio is well underway,” he argued. “The Ohio Democratic Party, and untold numbers of Ohio voters, will suffer irreparable harm if the right to vote is imperiled by voter suppression and intimidation.”
Election law expert Edward B. Foley of the Ohio State University Moritz College of Law, says lawsuits filed before the election can have a specific strategy.
“Lawsuits filed now to thwart intimidation at the polls on Election Day have a kind of ‘table-setting’ function,” he said.
Foley said the goal is to get a case on a judge’s docket ahead of time, in case lawyers have to go back to the judge quickly for an emergency order. “They also put the named defendants on notice that if they actually engage in activities that might constitute unlawful intimidation, then those defendants are potentially subject to contempt-of-court sanctions” he said.
Trump lawyers are firing back.
“Intimidating voters is illegal, and the Campaign does not remotely condone such conduct,” Trump campaign lawyer Chad A. Readler of Jones Day wrote a 15-page legal filing in Ohio.
“This case is one of four coordinated attacks across the country that are clearly long-planned efforts to sow chaos in the Defendants’ political efforts, while garnering maximum publicity for Plaintiff’s unsubstantiated, inflammatory claims on the eve of the Presidential Election,” he wrote.
Readler, argued that “rattling off a litany of alleged statements and actions by various putative ‘Trump supporters’ and other sundry third parties at various times in different locales simply does not, as a matter of law, establish a conspiracy by the Campaign to engage in voter suppression.”
And he said there is no “articulable evidence” that the Campaign’s alleged statements and actions are the product of “racial animus.”
“Indeed, the Complaint asserts that the Campaign’s alleged comments encouraging citizens to serve as poll observers ‘are consistently directed at Democratic-leaning communities with large minority populations’, which conflates a vital distinction between a putative racial motivation and a partisan motivation.”
Regarding Trump’s comments concerning poll watchers Readler argued, “Candidates are perfectly within their rights to encourage their supporters to serve as poll watchers,” Readler said. “Supporters of opposing candidates are perfectly within their rights to debate whether an election is at risk of being ‘rigged’ because of voter fraud,” he added.
He also warned if the Democrats won an injunction it might reach “all sorts of innocuous, entirely legal conduct — such as protesting against a candidate on a sidewalk several hundred feet from a polling place.”
That, Readler warned, might have First Amendment implications. “Plaintiff’s sweeping request for relief thus runs roughshod over the First Amendment.”
A hearing in the Ohio case is scheduled for Friday.