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Elections officials in this swing county took new steps Tuesday to combat rising concerns of voter intimidation at the polls, banning gatherings of two or more voters openly carrying guns near polling places, and forcing armed residents who aren’t voting to keep their distance.
But a constitutional law expert said the restrictions will almost certainly face a court challenge.
Voters in Pennsylvania are legally allowed to carry guns to the polls. The resolution by the Erie County Board of Elections sought to place limits on activity that could be seen as intimidating by people in close proximity to the polls who are not voting.
The move comes a week after the Washington Post reported that a group called Open Carry Pennsylvania may be monitoring polling places on Election Day. In September, the Erie Times-News reported that racist and threatening fliers also promoting a white supremacist group were dropped in residents’ driveways.
And last week, residents outside Erie found intimidating fliers on their properties, said Jim Wertz, chair of the Erie County Democratic Party.
The fliers show cut-out photos of former Vice President Joe Biden, former President Barack Obama, and Biden’s running mate, U.S. Sen. Kamala Harris, next to threatening messages, like “Day one, get ready. This is the real deal.”
Veronica Rexford, a former Democratic candidate for Erie County Council and secretary of the Erie chapter of the NAACP, was one of the voters who found the fliers in her mail. Rexford said she lives on a main road in Millcreek Township, and has also had her mailbox destroyed and political signs on her lawn stolen in recent months.
“I already voted,” said Rexford, a program director at the Urban Erie Community Development Corporation. “None of this is intimidating me to keep me from voting, but I just think it’s a horrendous atmosphere that’s been created.”
County Councilman Carl Anderson III, an Erie Democrat and chair of the board of elections, said the resolution’s language is targeted toward openly armed electioneers at the polls. Under the Pennsylvania Election Code, anyone can engage in electioneering activities as long they are at least 10 feet from the polling entrance. If an individual is openly carrying a firearm near a polling place, the resolution requires that they stay at least 100 feet away, the same distance required of police officers, according to state law.
“If you want to hold a political sign and you want to be 10 feet from the polls, put your gun in the car,” Anderson said before Tuesday’s meeting. “If you want to express your right to be able to say, ‘I want to hold a sign and a gun, because that’s my right and I want to express that,’ that’s fine, that’d be 100 feet from the polls.”
Another provision is meant to bar groups of people openly carrying firearms from gathering near polling places and drop boxes, said Thomas Talarico, the board’s solicitor.
“Let’s say you have a number of people carrying guns at a polling place, even 100 feet away. We would take a position that they have to disperse,” Talarico said at the meeting. “And if not, the judges of elections should call the sheriff to assist in removing them.”
But Bruce Ledewitz, a Duquesne University constitutional law professor, said the restrictions very likely violate state law and could quickly face a court challenge.
“It would be challenged and struck down immediately,” Ledewitz said Tuesday, before elections board members approved the resolution.
That’s because most local governments can’t contradict state laws, in this case the right to openly carry guns, he said. Anyone can openly carry in Pennsylvania without a permit, except in Philadelphia. A license is required to carry a firearm in a concealed way or to transport it in a vehicle.
“If I have a right to do ‘x’, then my local government cannot in any way penalize me for doing ‘x.”’
The resolution “is presuming that people who openly carry guns are engaging in intimidation,” Ledewitz said, but intimidation is a separate and distinct offense.
As recently as this week, President Donald Trump has falsely warned of widespread fraud at Pennsylvania polling places and urged his supporters to go and keep watch. State law allows campaigns to appoint poll watchers to observe voting, but it’s a defined process, and not just anyone can show up at a polling place to do it.
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Mary McCord, legal director at the Institute for Constitutional Advocacy and Protection at the Georgetown University Law Center, said Erie’s resolution was a reasonable determination that groups of two or more people carrying guns could be intimidating to voters.
“It doesn’t really matter that open carry is generally legal in Pennsylvania, because voter intimidation is illegal in Pennsylvania,” McCord said. “So, you know, that’s a compelling government interest,” she said, referring to a legal principle recognized by the U.S. Supreme Court that judges can apply to justify the infringement of an individual’s rights.
McCord sent a letter to the city of Erie’s chief of police and the county sheriff, laying out legal grounds against armed-group activity and offering her organization’s assistance.
“ICAP has brought together a coalition of national law firms that have committed to assisting communities in preventing unsanctioned paramilitary activity and voter intimidation,” the letter reads.
McCord said threats across the country from armed groups are cause for real concern.
“It would be better to inform people and educate people with accurate information, let people know that this is not lawful because for too long in this country I think people have this mythology about the Second Amendment that somehow this is actually protected when it’s not,” McCord said. “The Supreme Court has been very clear about that.”
Talarico conceded the possibility of a court challenge to Erie’s new resolution.
“I myself say, ‘Bring it on.’”
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