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This article was originally published by Votebeat, a nonprofit news organization covering local election administration and voting access.
Wisconsin election officials are divided over how to handle the possibility of unarmed federal immigration or law enforcement agents arriving at polling places this November and asking to observe voting.
The disagreement centers on a passage in new Wisconsin Elections Commission guidance intended to help local election officials navigate encounters with law enforcement at the polls. Among other instructions, the guidance says that agents from ICE, the FBI and other federal agencies who want to observe voting must follow the same rules as other election observers.
But officials in Dane County, home to Madison and one of Wisconsin’s most Democratic strongholds, warn that the language could lead poll workers to admit federal agents in violation of federal law. Federal law bans U.S. officials from sending troops or armed agents to the polls except under extremely limited circumstances, and a different law bans voter intimidation.
In an Oct. 15 email to the commission, the county’s attorney argued that the guidance could be read as permitting armed ICE agents to observe voting, despite federal restrictions.
Dane County officials have spent months preparing for the possibility of federal interference in the election. The commission, meanwhile, approved its guidance less than three weeks before Election Day, after receiving what it said were hundreds of questions from local clerks seeking clarity about federal law enforcement at the polls.
Clerks and attorneys interviewed by Votebeat were divided over whether the guidance provides the clarity they need. Some praised it as helpful and others said it came too late or warned that its language could lead election inspectors to misunderstand the limits of federal law.
On page three, the guidance instructs election officials to contact their clerks and the commission if federal agents arrive to observe voting. If federal officials are present “just to observe, they still have to check in like regular observers and are subject to the observer rule,” it states. The guidance does not, at that point, distinguish between armed and unarmed federal agents.
It then discusses circumstances in which armed, uniformed local officers might observe voting.
Only two pages later does the commission explain the federal law restricting armed personnel in federal service from polling places.
The structure of the advice, Dane County attorney David Gault told Votebeat, “creates the implication it’s OK for ICE to be there and observe, and I just don’t think that’s the case.”
“If they’re armed, it’s clearly prohibited,” he said. “If they’re unarmed but still in some kind of a uniform designating them as a federal agent, I think the law is still pretty clear they’re not supposed to be there.”
Dane County officials object to commission guidance
Election officials across Wisconsin have been preparing for months for the possibility of federal law enforcement at the polls, but the concern is particularly acute in the state’s largest, heavily Democratic counties. In Dane County, the state’s second-largest, officials say listening to the commission’s guidance could complicate their efforts to keep federal agents from interfering with voting.
The guidance lays out steps for election officials to take when federal agents appear. Chief inspectors are instructed to immediately notify their municipal clerk, who must then contact the county clerk and commission staff. Agents carrying out legitimate law enforcement duties, rather than observing voting, are treated differently. In those cases, election officials are told to request identification and any warrants, document the encounter and ask officers to conduct their business outside the voting area when possible.
The commission also tells election inspectors they can remove observers if they have a reasonable basis to believe they are, or are about to, intimidate or disrupt voters. In its instructions addressing local law enforcement officers who insist on observing while armed and in uniform, the guidance leaves inspectors to determine whether their presence crosses that line.
Dane County Clerk Scott McDonell took issue in particular with the statement that if federal agents wish to observe, they can check in like regular observers.
“It’s inaccurate,” said McDonell, a Democrat. “It’s confusing. It doesn’t reflect what the law is.”
If a back-office ICE employee who’s unarmed wants to observe, that might be fine, McDonell said. “But that’s not how I think anyone would read that,” he said, saying clerks may assume the sentence is referring to armed federal agents.
Sharing McDonell’s concerns, Gault, the Dane County in-house attorney, sent an email to Wisconsin Elections Commission Administrator Meagan Wolfe on Oct. 15, the same day the commission finalized the guidance.
Gault said that while armed ICE agents are clearly banned from the polls under federal law, a separate federal law bars a person acting under the color of law from intimidating voters. Gault argued that it would ban even an unarmed but uniformed ICE agent from observing at the polls.
“There is no legitimate reason for ICE to be at a polling place,” he told Wolfe. “Everyone there is presumptively a U.S. citizen. I don’t think WEC’s guidance should imply that an ICE agent can be a legitimate observer.”
Commission attorney supervisor Angela O’Brien Sharpe disagreed, saying federal law doesn’t address every situation that may bring federal agents to the polls. “If federal law enforcement wishes to observe an election, then they are permitted to do so,” she said, adding that they would be subject to Wisconsin observer rules.
She emphasized that the guidance does not authorize armed federal observers and was intended to help poll workers “manage how to respond to varying situations like these” including deciding whether an officer’s presence constitutes intimidation or a disturbance.
Gault was unsatisfied, calling the guidance “confusing at best.”
“If asked, this office will advise election officials and law enforcement in Dane County that armed federal agents should not be at a polling place under any circumstances,” he wrote. “If they are there legitimately to vote they should at a minimum be unarmed.”
Local attorneys can offer advice to city and county election offices that contradicts the commission’s, Sharpe said.
Little precedent for federal agents observing elections
Federal election monitors from the Justice Department have observed voting for decades, but the prospect of ICE or FBI agents arriving at polling places specifically to monitor voting presents a largely untested legal question.
Justin Levitt, an election law specialist at Loyola Law School in Los Angeles who worked in the White House under President Joe Biden on voting rights issues, said the commission’s guidance is “legit and accurate,” adding that it’s “straight down the middle of providing lawful advice without picking a fight.”
“I understand why Dane County wants a different emphasis,” Levitt said. “I don’t think that means they were right and the state was wrong. I think that just means they’ve got different interests here.”
He said the commission and Dane County agree more than they disagree: They both agree that armed agents are banned at the polls and that chief inspectors can kick out anyone intimidating voters.
Had the commission gone further and said ICE was banned from the polls entirely, he said, “That would actually be getting Wisconsin in trouble because you cannot single out federal officials for special treatment.”
Sterling Knoche, a staff attorney at the University of Wisconsin Law School-based State Democracy Research Initiative, similarly said the guidance provides clerks with good instructions for minimizing disruptions at the polling place while instructing them to consult the people who could seek a court injunction if necessary.
Knoche said the commission may not have had a sound legal basis to categorically prohibit unarmed federal agents in uniform from observing. Whether their presence is lawful would depend on their conduct and the circumstances, he said.
In Milwaukee on Monday, Wolfe drew a similar distinction. She said that federal and state law prohibits armed federal agents from showing up at the polls, but said the legality of unarmed agents observing is less clear. In that case, she said, chief inspectors and poll workers must determine whether their presence intimidates or disturbs voters.
How clerks are preparing to apply the guidance
Local officials offered differing assessments of how useful the guidance would be, even as some agreed that federal agents in uniform could intimidate voters.
Marathon County Clerk Kim Trueblood, a Republican, said the guidance was “fine.” She said county clerks have been coordinating with their local sheriffs, who would be their first call if federal agents do show up at the polls. If she were an inspector, she said, she would not allow federal law enforcement agents to register as observers if they’re in uniform, even if they were unarmed.
“We would be on a very strong legal footing to say, ‘You standing there in your FBI vest is intimidating to voters, and so we’re not going to allow that,’” she said.
In an interview, Green Bay Police Chief Chris Davis told Votebeat that the guidance was quite helpful and would be instructive in the unlikely situation that federal agents show up at a city polling place.
“We have to make a decision about what to do fairly quickly,” he said, “so any time we can get guidance like this from an authority, it helps us do that.”
Green County Clerk Arianna Voegeli, a Democrat, said the commission’s guidance came late but was consistent with the guidance that she already had given to local election officials. She agreed that the mere presence of federal officers in uniform could constitute voter intimidation, though she said it’s a legal gray area if they’re unarmed.
“I’m not too concerned about issues here in Green County, just because we’re a smaller county,” she said, though she’s discussed the issue with law enforcement and feels prepared. Larger counties, she said, have likely developed their own plans already.
McDonell, the Dane County clerk, said this guidance might add to the confusion for some clerks instead of taking away from it.
“It would have been better if they hadn’t sent this out,” he said. “It’s at minimum badly worded.”
Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Shur at ashur@votebeat.org.
Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Wisconsin’s free newsletter here.
Can unarmed ICE agents watch voting? In Wisconsin that depends on who you ask is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.
