A number of readers have asked about observers at the polls and what they can and can’t do. As we often do, we asked a lawyer. The response below provides a pretty good overview.

The take away is: observers can not interact or interfere with you or the poll workers in any way. So get out there and vote now!

The relevant revised code provision regarding observers is 3505.21. This provides in part:

Upon the filing of a certificate, the person named as observer in the
certificate shall be permitted to be in and about the polling place for the
precinct during the casting of the ballots and shall be permitted to watch
every proceeding of the judges of elections from the time of the opening
until the closing of the polls. The observer also may inspect the counting
of all ballots in the polling place or board of elections from the time of
the closing of the polls until the counting is completed and the final
returns are certified and signed. Observers appointed to the board of
elections under this section may observe at the board of elections and may
observe at any precinct in the county.

Observers are there to watch. Even Husted makes this point in his
Directive. Other than casual conversation and gathering of basic
information, they may not communicate with election officials either to
challenge voters or advocate for voters. Husted suggests that any concerns
should be directed to the Board of Elections, who will then communicate
those concerns to the election officials at the polling place if
appropriate.

The concerns about these observers may, in part, be based on, on old Ohio
law. Under the Ohio law in effect for the 2004 election, parties and
candidates could appoint “challengers” who could question the right of the
person to vote. Once “challenged” the person would be questioned by an
elections official before being permitted to vote. (If you look up the ORC
on line, the heading for the section appointing “observers” still references
“challengers.”)

Under the old law, these folks could have done a lot of damage. At a
minimum, they could have slowed up the election process in key precincts,
creating long lines. In the 2004 election, when both parties appointed a
lot of challengers in order to have a presence in the polling places, we
were concerned that Republicans would do this in Democratic precincts in
order to try to discourage voters. Fortunately, that didn’t happen.

The big concern under the old law is that “challenging” a voter and then
making them answer questions under oath could be very intimidating.
Especially with people who don’t regularly vote, or who may have a reason to
feel disenfranchised, the process of having the right to vote “challenges”
would likely greatly discourage voting.

Fortunately, the revisions to Ohio’s election law eliminates challengers.
Really, all these folks can do is try to look intimidating. Whether this
works – as they mill around among a crowd of election works, is up to
interpretation.

What is a possible legitimate purpose for these folks? The observers are
permitted by a separate Husted directive to have electronic devices – i.e.
smartphones. This means that an observer can help with GOTV by
communicating via a smartphone app which voters have voted.

Under current law (O.R.C 3505.20), only an election “judge” may challenge a
person’s right to vote, and then the statute strictly limits the questions
that may be asked and permits the voting of a provisional ballot if
necessary.

 

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