What Poll Watchers Can And Cannot Do In Massachusetts

Poll watchers have been a part of American elections for almost as long as there have been American elections, stretching back to the 19th century. But as the 2020 election approaches, they have been thrust into the spotlight, as President Trump and his campaign say they are recruiting what they call an "army" of 50,000 poll watchers to monitor contested election areas.

Trump closed the first presidential debate by urging his supporters to “go into the polls and watch very carefully."

And we’ve already seen some evidence of what this might look like, when a group of Trump supporters gathered outside a polling location in Fairfax, Virginia on Sept. 19, the second day of early voting there, waving flags and chanting “four more years.” Elections officials responded by opening up a larger portion of the building to allow voters in line to wait inside, some of whom local officials said felt intimidated by the crowd.

Who can watch the polls — and what they are permitted to do — varies from state to state. For voters in Massachusetts who are planning to cast their ballot in person, and citizens who are planning to watch the polls on election day, we offer this examination of the ins and outs, and dos and don’ts, of poll watching in the commonwealth.

What is a poll watcher?
A poll watcher is defined as “a person assigned (as by a political party or candidate) to observe activities at a polling place to guard against illegal voting, fraudulent counting of ballots, and other violations of election laws.”

According to the National Conference of State Legislatures, “A poll watcher’s primary purpose is to ensure that their party has a fair chance of winning an election. Poll watchers closely monitor election administration and may keep track of voter turnout for their parties. They are not supposed to interfere in the electoral process apart from reporting issues to polling place authorities and party officials.”

“Poll watcher” is a generic term. What poll watchers are called, and the laws and rules that regulate what they can and can’t do varies by state. Here in Massachusetts, we use the term “observer.”

Who can observe the polls in Massachusetts?
Anyone.

In some states, like Arkansas, a poll watcher must complete an authorization form with the county clerk’s office. In others, like Georgia, the number of poll watchers per location is limited. In still others, like North Dakota, they must wear a badge identifying who they are and what organization they are affiliated with.

Here in Massachusetts there are no such restrictions. Anyone can observe the polls so long as they remain outside “the guardrail.”

“There, generally, is no actual physical guardrail,” said Debra O’Malley, spokesperson for Secretary of State William Galvin. “In the olden times there used to be a physical guardrail around the voting area. Now it is often sort of an imaginary one, though sometimes clerks will use tape or ropes.”

Inside the “guardrail” are the check-in table, check-out table (if there is one), voting booths, and ballot box.

O'Malley said wardens at polling locations are empowered to limit the number of observers if there are concerns about space. That's rarely an issue, said O’Malley, noting that “our polling places generally do not get many observers. It’s unusual.”

This year, however, given social distancing and the health and safety concerns related to the ongoing COVID pandemic, space could be an issue. O’Malley recommended that anyone planning to observe the polls this year should contact their local clerk ahead of Election Day to ensure they will be able to do so in the event space does become limited.

Why do we do it this way in Massachusetts?
“This is a free, open, and transparent process,” said O’Malley. “These are public elections. Everything that happens in an election happens in public so that everybody can see; everybody – no matter what your political party is, your persuasion or anything — everybody can watch and see what’s happening. And that helps keep the integrity of our election in place. And helps everyone know that everything we’re doing is above board.”

What are poll observers allowed to do?
They can observe the goings on, including the check-in process. They can take notes as to who has checked-in and voted.

“Normally the people observing are campaign workers who are checking off voter lists to keep track of who has already voted and report back about who needs to be urged to get to the polls,” said O’Malley.

In some cases, observers can challenge a voter's vote.

A challenge can be raised by an observer by notifying the warden. Any challenge must be made within the bounds of the law and state elections regulations. Just like the rest of the election process, it must be made in full public view.

“It’s very unusual to have a challenge,” said O’Malley. “You have to state your reason, and it must be a clearly lawful reason.”

Someone, for example, could challenge a voter on the grounds that they have falsified their address, O'Malley said. But the challenger must have direct knowledge of that fact.

Even if a voter is challenged, they are still allowed to cast their vote and their vote is still counted on Election Day. The voter’s name and address are noted on the ballot, as are the name and address of the challenger. Should an election prove close enough, all challenged votes will then be reexamined during the recount process to determine their validity.

If it is determined by the warden that challenges are being raised frivolously or unlawfully — possibly as a form of intimidation or to try to ascertain who a voter is voting for — the observer can be removed from the polling place and fined up to $100.

What are poll observers not allowed to do?
Restrict voters’ access to the polls, intimidate voters, talk to voters, carry any signage, wear clothes or paraphernalia supporting a particular candidate, party, or side on a ballot question.

And these restrictions don’t just apply inside a polling location.

The area outside of a polling location in Massachusetts is designed to be campaign and intimidation free. It is illegal to carry or display any signage; wear clothes or paraphernalia supporting a particular candidate, party, or side on a ballot question; or distribute pamphlets within 150 feet of the entrance to a polling place (that’s the length of half a football field).

An observer cannot enter the voting area enclosed by the “guardrail.” They are also not supposed to speak with anyone other than the warden. That includes voters and poll workers at the check-in table.

Any observer who is deemed to be restricting a voter’s access to the polls, intimidating voters or acting “disorderly” can be removed from the polling location.

Since candidates for federal office are on the ballot, federal law also applies in this election. According to 18 U.S. Code § 594, "Whoever intimidates, threatens, coerces, or attempts to intimidate, threaten, or coerce, any other person for the purpose of interfering with the right of such other person to vote" can face a fine and imprisonment.

Are observers allowed to record/film/photograph inside a polling location? What about voters?
Yes — with some restrictions.

In general, O’Malley said that the observers who are recording inside a polling location are members of the media. They, like all observers, must remain “behind the guardrail.”

For the sake of privacy, observers are not allowed to record voters’ names and addresses being spoken aloud as they check in. This means no audio recording is permitted at all. Any video shot in a polling location must be stripped of the audio if it includes names and addresses being spoken. Photos are generally allowed.

“You can take a wide shot, but you can’t zoom in on anyone’s ballot and you shouldn’t be zooming in on people’s faces,” O'Malley said.

Any recording that is deemed by the warden to be intimidating to voters is prohibited.

As a voter, you can take selfies and post them to social media, though O’Malley called photos taken inside the voting booth itself as “legally questionable.” She noted that in the past, clerks were encouraged to set up selfie stations in polling locations where voters could grab an “I voted” sticker and snap a photo in an area where they would be sure to not accidentally catch something in the background that might be prohibited, like another voter’s ballot. But due to the pandemic, that won’t be the case this year.

For voters inclined to post photos on social media on Election Day, it is worth noting that it is technically illegal in Massachusetts to display your completed ballot — a law that was originally to prevent vote buying.

Can an observer or voter bring a gun to a polling place?
So long as they have the proper license, a gun owner in Massachusetts may carry their firearm in public. There is no law or regulation that specifically prohibits the carrying of a firearm in a polling location.

That said, O’Malley noted that there are laws that prohibit the carrying of firearms in certain locations in Massachusetts, such as school zones, post offices and other federal buildings. Schools in particular are commonly used as polling locations on Election Day. If the law restricts the carrying of a firearm in or around the building where a polling place is located, then it is illegal to carry a firearm at that polling location.

What should I do if I feel intimidated by an observer or see behavior that concerns me at the polls?
Talk to the warden. The warden is empowered to enforce all election laws and regulations. A police officer is located at each polling place to aid the warden in that duty.

Should there be an issue that cannot be resolved with the warden, you can also call your local election office and/or the Election Division of the Secretary of the Commonwealth’s office. That toll-free number, 1-800-462-VOTE, is posted at every polling place, along with the “voter’s bill of rights.”