Election Observation: Rules and Laws

Lawfare is partnering with the Stanford-MIT Healthy Elections Project to produce a series on election integrity in the midst of the coronavirus crisis. The Healthy Elections Project aims to assist election officials and the public as the nation confronts the challenges that the coronavirus pandemic poses for election administration. Through student-driven research, tool development, and direct services to jurisdictions, the project focuses on confronting the logistical challenges faced by states as they make rapid transitions to mail balloting and the creation of safe polling places. Read other installments in the series here.

As states prepare for Election Day, many jurisdictions have paid considerable attention to poll workers. However, another group of people in the electoral process warrants more focus than it has received so far: election observers. Election observers, sometimes called poll watchers, are a cohort of people who watch over the U.S. voting process by reporting on inconsistencies, flagging election violations and challenging the authenticity of voters. These poll watchers have significant roles and responsibilities that play a major role in elections nationwide.

Many states allow poll watchers to observe the entire voting process—from voters casting their ballots to election officials counting votes. During this oversight process, poll watchers are enabled to report both discrepancies in procedure and rule violations to their respective boards of elections. These reports of rule violations can include accusations of on-site electioneering (in which a person attempts to politically campaign at a polling station) in addition to voter identification issues. In some states, poll watchers can even challenge the authenticity of any voter and seek verification of the voter’s identity before the individual casts a ballot.

The responsibilities of U.S. election observers and the manner in which they are selected varies from state to state. In some states, political parties appoint people to observe the process on their behalf. In others, any member of the public, regardless of party affiliation, may observe the way that ballots are cast and counted. The national variation exists mainly because the rules that govern election observation are created at the state level. Still, some counties have power over how these rules will be implemented locally, with some states allowing for county committees or county political parties to nominate their county precincts’ poll watchers.

Rules for Observers in Battleground States

States each have their own rules governing the observation of in-person voting, signature matching, mail ballot verification and ballot counting. This post covers rules for election observers in eight (loosely defined) battleground states: Arizona, Florida, Georgia, Michigan, North Carolina, Ohio, Pennsylvania and Wisconsin.

In-person voting election observers generally fall into one of two categories: party appointed or public. The majority of the battleground states—Arizona, Florida, Georgia, North Carolina and Pennsylvania—require poll observers to be appointed or nominated by a county or state party chair. One battleground state, Wisconsin, permits any member of the public to observe elections. And the two remaining battleground states, Michigan and Ohio, have both party-appointed observers and nonpartisan observers. Michigan has party-appointed poll challengers but the state’s poll watchers can be any member of the public. Ohio, by contrast, has poll watchers who are appointed by both political parties in addition to watchers appointed by ballot initiative committees, which are committees that are formed to support the passage of a legislative measure. But no matter the process, election observers—whether party appointed or members of the public—cannot promote candidates on the ballots, as that would violate state electioneering laws.

States also have differing requirements for observation of the signature matching and ballot verification processes. These rules vary in terms of party-appointed or public oversight. Some states appoint observers for these processes through political parties, others allow any member of the public to observe the process, and a few allow both public and party oversight. Regardless of the appointment process, the power of observers in each state varies greatly. Some state laws allow observers to challenge individual ballots while others permit observers only to observe signature and mail ballot verification.

Likewise, the battleground states have different policies governing oversight of the ballot counting process. Arizona and Georgia employ an oversight process by which poll watchers nominated by political parties can see the tabulation of ballots. Ohio appoints canvass observers by political party but also employs ballot initiative committees whose members are not always formed via the parties. And the majority of battleground states—Florida, Michigan, North Carolina, Pennsylvania and Wisconsin—use a public oversight process, in which any person can witness the tabulation of the ballots. Overall, states do not allow for poll watchers to interfere with the process; they can only observe.

Arizona

In Arizona, political party observers are nominated by the county chair of each party and are approved by the county recorder to observe specific voting locations on Election Day, a central counting place or multiple voting locations. Political parties in the state may agree to and stipulate the same number of observers at each voting place; if an agreement cannot be reached, the parties are limited to one observer at each location.

Political party observers in Arizona may observe the opening of polling places; voting at polling places (although observers must maintain distance between themselves and the voter to uphold the integrity of the secret ballot); the closing of polling places; the transport of ballots from polling places to a specified receiving site; and/or any other significant voting or processing activity, including vote counting.

In Arizona, counties are charged with signature matching under the supervision of the county recorder. During the signature verification process, the county recorder (or other designated election officer) will compare voter signatures on the affidavits with those in the registry. Up to two party observers—one from each party—may watch over “any significant voting or processing activities,” including the signature verification process. In addition, counties such as Maricopa County have discretion to allow up to two members of the public to observe the election process. During ballot counting, poll watchers can observe every stage of the vote counting process, from inspecting ballots to tabulating ballots to reviewing ballots.

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