DOVER, Del. (AP) — The Delaware attorney general’s office has backed away from a suggestion that anyone handing out literature at polling places that accurately cites state law regarding voter fraud could be charged with voter intimidation and has confirmed that Delawareans are not prohibited by state law from carrying firearms while voting.
The state Department of Justice issued a release Tuesday reminding voters of their rights and responsibilities and advising that law enforcement and elections officials will strictly enforce Delaware’s voter intimidation laws.
“Delawareans should feel safe exercising their voting rights now and on Election Day,” Democratic Attorney General Kathleen Jennings said in the statement. “The Department of Justice is the people’s law firm, and we will not tolerate voter intimidation, election tampering, or interference with anyone’s rights.”
Examples of voter intimidation cited in the release include exhibiting menacing or threatening behavior, questioning voters about their credentials, obstructing access and disrupting the voting process. They also include “distributing literature at the polls outlining the fact that voter fraud is a crime and/or detailing the legal penalties for impermissibly casting ballots.”
The warning regarding literature distribution is not based on any law, but on a judge’s ruling in a federal lawsuit filed in New Jersey almost 40 years ago. The lawsuit was filed by the Democratic National Committee, which accused the Republican National Committee and the New Jersey Republican State Committee of engaging in activities aimed at intimidating minority voters. The suit was resolved in a consent decree entered in 1982.
In 2009, a judge rejected the GOP’s request to vacate the consent decree but ordered that it be modified declared that it would expire in December 2017, unless the DNC prove that the RNC had violated its terms. The decree expired as ordered after a failed attempt by the DNC to extend it. Less than two weeks before the 2016 presidential election, the DNC filed an emergency motion alleging that the RNC was violating the decree by coordinating ballot security efforts with Donald Trump’s campaign. The motion was rejected by the courts.
In his 2009 ruling, the judge ordered that language be modified to clarify the distinction between normal poll watching activities and “ballot security” programs for which the RNC required court approval. He declared among other things that ballot security efforts would include “the distribution of literature informing individuals at or near a polling place that voter fraud is a crime or detailing the penalties under any state or federal statute for impermissibly casting a ballot.”
While the consent decree was binding only upon the DNC, the RNC, and their respective state committees, Delaware officials nevertheless have relied on it to issue warnings to the general public in 2016, and again this year, about voter intimidation. That meant that anyone handling out literature correctly citing the provision in Delaware law regarding voter fraud risked potential arrest and prosecution.
After The Associated Press raised questions about content-based restrictions on free speech in violation of the First Amendment, the attorney general’s office issued a corrected release noting that the consent decree had expired. The office did not directly address the free speech issue, however.
“As recently as 2018 federal courts used this language to describe potential voter intimidation in violation of the Voting Rights Act,” DOJ spokesman Mat Marshall said in an email. “While that specific consent decree was recently lifted, this kind of behavior nevertheless toes a line at best and would be criminal under Delaware law if done in a menacing or threatening manner.”
“Absent the consent decree, I am unaware of any particular state law that would criminalize it, with the caveat that intimidation is fact-specific and depends on the content and manner of delivery,” Marshall added in a subsequent email.
Meanwhile, the attorney general’s office confirmed that while authorities will be guarding against voter intimidation, “whether armed or unarmed,” Delawareans have a right to carry firearms when they vote.
“With respect to weapons, we are an open carry state and voters have a right to carry their firearms into the polls, but just because it is legal does not make it a good idea,” Marshall wrote. “Exercising your constitutional rights should not endanger others, nor does the Second Amendment protect anyone from criminal consequences if they intimidate, threaten, or endanger another person.”
Marshall confirmed that the right to carry a firearm into a polling place extends to concealed weapons carried lawfully by permit holders and to polling places at schools, which are routinely declared to be “gun free zones.” Marshall said the “gun-free” designation, for purposes of criminal law, applies only to juveniles and anyone committing some underlying offense.