Justice Department Sends 1,000 Election Monitors to All 50 States, but Counties Decide Who Enters

The Justice Department plans to send about 1,000 election monitors into all 50 states for Tuesday’s midterm elections, the largest monitoring effort in its history, Votebeat reported on Saturday. The department has said it will not publish the full list of places until Election Day.

What the department cannot do is guarantee that any of them gets through the door. The federal law that admits government watchers into polling places applies to a different category of official, appointed in a different way, and in only a handful of jurisdictions. The monitors going out this week stand where any member of the public stands, unless a state or county lets them closer. Several have already said they will not.

What is the difference between an observer and a monitor?

An observer has a statute; a monitor has a policy. Under 52 U.S.C. § 10305, section 8 of the Voting Rights Act, the Office of Personnel Management assigns federal observers to a jurisdiction when a court has authorised them under section 3(a) of the Act, or when the Attorney General certifies the need. Those observers may “enter and attend at any place for holding an election” to see whether eligible people are being allowed to vote, and may attend the count.

The certification route depended on the coverage formula in section 4(b), which the Supreme Court struck down in Shelby County v. Holder in 2013. The department’s own page on observers and monitoring says the Civil Rights Division no longer relies on that formula and can engage observers “where there is a relevant court order.” It lists Alaska, Louisiana, New Jersey and Rhode Island as places with such orders. The same page describes monitoring by Division attorneys and staff as something the Division does in the field; it names no statute that gives those staff a right of entry.

The department’s spokesperson, Kiersten Pels, put the consequence plainly to Votebeat: “DOJ monitors are subject to state and local laws and rules pertaining to polling locations.” A Justice Department letter to Pennsylvania said: “Our monitors only observe and take notes.”

Which places have said no?

At least seven counties in four states, on the published record. In Arkansas, the Washington County election commission voted 3-0 to deny the monitors entry, Newsweek reported, and on Thursday the Pulaski County Board of Election Commissioners voted 2-1 to do the same, according to KATV. The county’s elections coordinator said that monitors who are refused “will have to remain outside the 100 foot area.” Indiana officials said monitors in Marion and Lake counties will not be allowed inside; Jefferson and Fayette counties in Kentucky have taken the same line.

Wyoming went further. Its attorney general, Keith Kautz, gave an opinion on 16 October that the Civil Rights Division’s monitors have no statutory authority to enter access-controlled areas, and Laramie County will keep them 100 yards from its polling places, Wyoming Public Media reported. Other states are admitting them on ordinary terms. Kansas’s secretary of state, Scott Schwab, told PBS News that monitors can walk in like anyone else but cannot go behind the rope where voters are checked in. Pennsylvania’s secretary of the commonwealth, Al Schmidt, said they are “not legally entitled to any greater access to polling places than any member of the public.”

The following table is this publication’s compilation of the responses reported so far. It covers only jurisdictions where an official decision or statement has been published.

How big is this compared with earlier elections?

Between two and a half and three and a half times the last midterm, depending on whose count is used. A department official told PBS News that 388 monitors were sent to polling places in 2022; Newsweek gives 289 for 2022 and 714 for the 2024 presidential election. By this publication’s arithmetic, 1,000 is 2.6 times the first 2022 figure, 3.5 times the second, and 1.4 times the 2024 deployment. The sources do not explain the gap between the two 2022 numbers.

The geography is the other change. Monitors have historically gone to jurisdictions with a record of discrimination. Counting the locations reported by Democracy Docket on 30 October and the seven Texas counties named by Votebeat, 54 cities and counties in 22 states have been publicly identified. That leaves 28 states where, two days out, no location has been named.

Who will the monitors be?

Not only voting-rights lawyers. Monitors are usually attorneys from the Civil Rights Division, but at the Arizona primary this year six criminal prosecutors and an FBI employee served, according to Votebeat, and Newsweek reported that court filings list employees of the Bureau of Prisons, ATF, DEA and Customs and Border Protection among this year’s monitors, with the department saying their duties will be limited to routine monitoring. A senior official told PBS News the monitors are “not out there checking citizenship status,” and that none will go to early voting sites.

Federal courts in San Francisco and Washington have spent the past week setting limits on what the department may say to election officials; the NAACP is separately suing for details of the monitoring plan. None of that litigation decides where a monitor may stand. A county board with a quorum does, and on Tuesday the line will be drawn in feet.