No Intimidation Allowed at Polls
Private Militias are Illegal.
I have worked as a poll worker in the Town of Barton and Village of Kewaskum. Before that I served as the county election protection supervisor for the Democratic party for every election from 2007 through 2017. I have closely followed election security issues locally, throughout Wisconsin and across the nation for many years. Even with questions about the integrity of electronic voting machines and network security in how votes are tallied and transmitted, I remain confident that our system for accepting and counting ballots leaves no doubt that all legitimate votes are counted and those few fraudulent ones are discarded. This view is generally accepted by election experts in and out of government and in both major political parties.
Notwithstanding these views, there are a few extremists on the right and left ends of the political spectrum who continue to predict that the outcome of the upcoming election will not be legitimate and, for some, a reason for armed insurrection against the government formed after the vote tallies are announced.
Recent studies by the Department of Homeland Security, the FBI and Center for Strategic Studies all indicate that alt-right white supremacist groups are responsible for most of the recent terrorist plots and violence. Homeland Security officials see white supremacists as the “most persistent and lethal threat in the homeland.”
Some fear that these groups, emboldened by comments from certain national leaders, will appear in armed cadres at polling locations to intimidate voters seeking to suppress or change their votes.
Wisconsin has a long history of so-called militia groups who have tried to influence politics through fear and intimidation. The Posse Commitatus was active in the 1970s, until law enforcement cracked down and their public leaders were incarcerated on various charges.
Wisconsin is among five states noted to be at the highest risk of increased militia activity before and after the election, depending on the outcome. The Armed Conflict Location and Event Data Project (ACLED), which receives government funding, indicates the trends they identify “raise significant concerns for the security of the election period, how seriously the election results will be taken and the response to whichever winner is selected.”
The militia type groups identified as most problematic here and across the country include Oath Keepers, Proud Boys, Patriot Prayer, Boogaloo Bois and Three Percenters.
The fascinating aspect of most of these groups is their claim to legitimacy under the Second Amendment’s protection of the right to bear arms and the First Amendment’s protection of the right to Free Speech and Assembly. Unfortunately, the courts and most legal scholars and analysts disagree.
The US Constitution affords no protection to private armed militia groups that are unconnected to or outside the authority of the government. All fifty states prohibit and restrict private militia activity with different kinds of laws, including provisions in state constitutions.
The United States Supreme Court has directly ruled in two different cases, District of Columbia v. Heller and Presser v. Illinois, that while the Second Amendment protects an individuals’ right to keep and bear arms for self-defense, it does not protect militia-type activity or prohibit state restrictions on it.
The Institute for Constitutional Advocacy and Protection at Georgetown Law School released an analysis of Wisconsin anti-militia laws. It concluded that a private militia that attempts to activate itself for duty is illegal. Wisconsin’s constitution forbids private military units from operating outside state authority in Article 1, Section 20. Wisconsin statutes prohibit falsely assuming functions of a public officer with felony penalties. Wis. Stat. §946.69.
Notwithstanding these provisions, we saw militia type activities in the plot to kidnap and try Michigan Governor, Gretchen Witmer, that involved para-military training in rural Cambria, Wisconsin and in the para-military actions in Kenosha during the unrest over the police shooting of Jacob Blake that resulted in the deaths of two protesters at the hands of Kyle Rittenhouse.
With Tuesday’s election looming, Wisconsin Attorney General Josh Kaul has also warned those who might try to influence the outcome through an armed presence at polling locations that they will face prosecution and incarceration under Wisconsin election protection laws as well. There is no First Amendment right to strike fear in others to influence the exercise of the franchise.
Citizens must be allowed to cast their votes for candidates of their own choosing without intimidation from armed para-military groups or individuals. If militias or armed individuals are allowed to invade our polling locations, then the results will indeed not be legitimate.
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