Federal Observers and Monitors at Virginia Polls: Who Is Allowed and Who Decides

People sometimes picture a single category called "federal observers" at the polls. A joint bulletin from the Virginia Department of Elections (ELECT) and the Office of the Attorney General (OAG), dated Oct. 15, says the picture is more complicated. It describes three separate kinds of federal presence, each governed by different rules. This guide walks through them.

The bulletin is informational and not legal advice. It was written for local election officials, and it points them to local counsel for questions.

The starting point: who may be inside

State law, the bulletin says, strictly limits who may be inside a polling location. The groups are officers of election, voters, the press, authorized party or independent candidate representatives with written consent, and neutral observers authorized by the local electoral board or general registrar. The bulletin then adds: "In addition to authorized representatives under state law, there are limited instances in which federal monitors and observers may be present."

Congressional observers

The first category is U.S. congressional observers. The bulletin says they "have a right to observe voting locations during federal elections under the federal Confirmation of Congressional Observer Access (COCOA) Act," citing 52 U.S.C. § 21083a.

Those observers are designated by the U.S. Senate Committee on Rules and Administration or the U.S. Committee on House Administration. Any observer "must be designated in writing by the chair or ranking member of one of the committees."

The bulletin stresses that their rights are governed by federal law and differ from those of authorized representatives under state law. It encourages local officials to review the COCOA Act with local counsel.

Court-authorized observers

The second category is observers authorized by a federal court. Under the Voting Rights Act of 1965 § 6(d), the bulletin says, federal courts may authorize "observers" to access voting locations (52 U.S.C. § 10305(d)).

The bulletin makes a point about the present situation: "There is currently no active Court order in Virginia requiring any locality to accept the presence of federal government 'observers' under the Voting Rights Act." That statement is the bulletin's own, as of its Oct. 15 date.

Department of Justice monitors

The third category is U.S. Department of Justice (DOJ) monitors. According to the bulletin, DOJ operates an election monitoring program, historically run by the Civil Rights Division, to assess state and local compliance with federal voting rights laws. Those monitors "have historically carried out these duties in federal elections in some Virginia localities."

The key rule is consent. "For these monitors to be present at a polling location, DOJ must request consent from local election officials." The bulletin says those requests are treated the same as requests from neutral observers under state law. They may appear at the discretion of local election officials and must follow all rules governing authorized representatives. Monitors need written authorization to enter, and must agree to follow the rules.

The bulletin states plainly that "the decision to accept the request to monitor is in the sole discretion of the applicable electoral board and general registrar."

How officials are advised to respond

If DOJ gives advance notice, the bulletin says officials should share it with counsel as soon as possible and notify their ELECT regional liaison immediately. It then lists steps boards and registrars may consider:

• Discuss scope. Ask about the legal authorities monitors will assess and whether a list of participating individuals will be provided. The bulletin suggests asking whether DOJ is assessing compliance with civil or criminal federal laws.
• Confirm conduct rules. Make sure DOJ knows and intends to follow state conduct rules, and get a point of contact to report issues and, if needed, withdraw consent.
• Determine whether to consent. Factors may include the scope of monitoring, the monitors' willingness to follow rules, transparency about their identities, the risk of disruptions and how much time there is to prepare.
• Authorize in writing. If consenting, provide written authorization for each named monitor.

What happens at the polling place

If officials consent, the bulletin recommends training chief officers of election on three points. They should check credentials: anyone claiming to be a DOJ monitor should show written authorization from the general registrar, written authorization from DOJ and a government identification. They should give no specialized access: monitors get no more access than other authorized representatives. And they should alert the registrar if any neutral observer, including a DOJ monitor, acts outside the scope of their authorization or becomes disruptive, with the registrar then notifying ELECT.

The rules that apply to everyone still apply to monitors. According to the bulletin, they cannot use cell phones to take photos inside, and they do not have a right to access secure locations or to handle ballots and equipment. Officers of election, the registrar or the electoral board can remove monitors who fail to follow the rules governing their authorization.

If someone shows up unannounced

The bulletin addresses the case where DOJ provides no advance notice and a person claiming DOJ affiliation asks to enter while voting is under way. Officers of election should bring the issue to the general registrar. "Only the general registrar and the electoral board can grant access to a polling location to a neutral observer, and only in writing. Officers of election at a polling location cannot authorize the presence of a neutral observer." The requester stays outside the 40-foot area meanwhile.

What this does not cover

The bulletin treats armed federal agents and law enforcement activity separately. It notes that federal law makes it a criminal offense for federal officials to deploy armed personnel to polling locations except in certain rare circumstances, citing 18 U.S.C. § 592. It also says state and local law enforcement may enter polling locations while performing their duties.

The takeaway for voters

You are unlikely to notice any of this on Nov. 3. If you do see an observer, the bulletin's framework means that person should have written authorization, ID and a reason that fits one of the categories above. If you have questions about observers at your polling place, your general registrar is the official who decides about neutral observers and who can explain local arrangements.