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This year marks the first presidential election in a half-century when there will be no federal observers at polling places. That's because in 2013, the Supreme Court struck down a key provision of the Voting Rights Act. When the court wiped out that section, the statute that provided for election observers went, too. NPR legal affairs correspondent Nina Totenberg reports on the consequences.
NINA TOTENBERG, BYLINE: The Supreme Court's landmark decision in the voting rights case doesn't mean civil rights officials are totally disarmed at the polls. The Justice Department is sending out, quote, "hundreds of monitors" to oversee Election Day compliance, but the number is smaller than it was before, and monitors can only enter the polling place if local officials agree.
Observers, by contrast, had a statutory right to be inside polling places. They were trained specifically for the task. There were many more of them, and they had far more authority than monitors. Vanita Gupta, the assistant attorney general for civil rights, concedes that the Justice Department is paying a price in terms of voting rights enforcement.
VANITA GUPTA: The hope is that just by having the presence of the federal government at the polling sites, even if we may be slightly were diminished or spread thinner, that our sheer presence is sufficient deterrent effect and gives voters the confidence that they need to feel like the process is fair.
TOTENBERG: Gupta says she expects federal monitors to fan out over half the states on Election Day. None of these monitors, however, will have the legal clout that observers did. Observers typically were stationed inside polling places to watch the partisan poll-watchers, make sure that rights were enforced and document that the number of voters jibed with the final vote tallies. Indeed, they could even go inside the polling booth to make sure that assistors were accurately recording the votes of people who needed help in voting. Gerry Hebert, who served in the Justice Department voting rights section for 21 years, says that having federal monitors is good as far as it goes.
GERRY HEBERT: But it doesn't really replace that kind of on-site, complete oversight within the polling place.
TOTENBERG: He points to polling places where officials simply turned away people who spoke in a language other than English on the assumption that they were not citizens.
HEBERT: And so we had to, in some instances, have poll officials removed from polling places.
TOTENBERG: Today, with the exception of a few places where there are court-ordered observers, none of that authority exists. Kristen Clarke is president of the nonpartisan Lawyers' Committee for Civil Rights Under Law.
KRISTEN CLARKE: Really, none of these efforts are an adequate substitute for the protections that had long been provided by the federal observer program.
TOTENBERG: She's concerned by rhetoric from Donald Trump.
(SOUNDBITE OF ARCHIVED RECORDING)
DONALD TRUMP: We can't lose an election because of - you know what I'm talking about. So go and vote and then go check out areas.
TOTENBERG: There's no evidence of a concerted effort by the Trump campaign to intimidate voters. That said, however, there's considerable worry about what rogue Trump's supporters might do, spurred on by Trump's rhetoric. Voting experts even raise the possibility that Trump's supporters in open carry states might arm themselves with guns and stand ostentatiously near polling places. Again, Kristen Clarke...
CLARKE: I think it would be a mistake to turn a blind eye to much of what we've heard this election cycle.
TOTENBERG: Then, too, there's the fact that after the Supreme Court gutted much of the Voting Rights Act, Republican legislatures in a significant number of states passed new laws making it more difficult to vote. Though the courts have struck down some of these laws as intentionally discriminatory, civil rights lawyers contend some state and local officials continue to undermine those court decisions.
In Texas, for instance, where a federal appeals court invalidated the voter ID law for being too strict, there continue to be disputes about procedures for affidavits that allow people to vote. In Harris County, which is Houston, to cite just one example, County Clerk Stan Stanart has announced that if a voter signs an affidavit declaring that he or she does not have the proper photo ID, that individual could be prosecuted for fraud if state data rolls show later that the individual was in fact issued an I.D. at some time.
STAN STANART: If someone is lying, we will be turning it over to the DA so they can investigate.
TOTENBERG: So why would somebody deliberately lie about not having an ID when they have an ID?
STANART: Well, because we've seen it out on the blogs - we've seen on the internet - people who do not like the photo ID - this is their method of protesting.
TOTENBERG: Assistant Attorney General Gupta believes that in most places, voters will be able to cast their ballots without any problem. That, at least, is her hope. Nina Totenberg, NPR News, Washington.
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