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This article is made possible through Votebeat, a nonpartisan reporting project covering local election integrity and voting access. This article is available for reprint under the terms of Votebeat’s republishing policy.

Nakia Carr, 45, was poll watching at her local precinct in South Philadelphia on Election Day when chaos ensued. She remembers a rush of voters wrapped around the block during the early morning hours right when one of the voting machines suddenly stopped working.

“We were having a very rough time trying to get one machine operating and trying to get people out of the cold,” Carr recalls.

That’s when a man who identified himself as a Republican poll watcher entered the polling location, demanding that he be let in to observe voters.

“It was the intimidating, threatening, hostile manner he came in,” that struck Carr immediately.

Suzanne Almeida, interim director of the good-government organization Common Cause Pennsylvania, says watchers are appointed by candidates and parties and they have to be registered voters in the county they are serving.

“[Poll watchers] have a certificate from the county and can challenge eligibility of individual voters to vote on specific grounds,” Almeida explained. “They are allowed to be in the polls but they can not interfere with voting or harass and intimidate voters.”

There are state rules that regulate what watchers are allowed to do within polling places. They can’t talk to voters directly. But if they want to broach a concern, they can appeal to the Judge of Elections at each polling place. And they are permitted to review the poll book at voting location, but that’s only if there are no voters in line at the time.

Poll workers at Carr’s polling location at 20th and Reed that day were managing large lines and trying to observe social distancing protocol. As a result, they had asked the Republican poll watcher to momentarily wait outside until some of the voters had cleared out and the Judge of Elections could verify his information. Upon review of the poll watcher’s certificate, the Judge of Elections claimed it was for the wrong location and said he wouldn’t be able to grant him entry.

This incident was recorded on video by residents outside and immediately went viral on Twitter, with many people using this incident as proof of widespread voter fraud in Philadelphia.

According to Carr, that’s when things got heated. She says the poll watcher approached the Judge of Elections and started waving his certificate in front of him and asking him “Can you read? Are you Hispanic? Are you stupid?”

He can be heard on video saying that he has a “city-wide watcher’s certificate”.

A fact check by Reuters published the same day clarified that there was a misunderstanding about where poll watchers are legally able to observe. Carr, who’s served as a poll watcher for over eight years says poll watcher certificates have changed over time.

“It used to be specific to ward and division but now you can be a poll watcher in any ward and division [within your county],” Carr explained.

According to Reuters, “Kevin Feeley, a spokesman for the Philadelphia City Commissioners Office, confirmed that the man in the video was indeed a certified poll watcher but confusion over laws about watchers and locations by the Judge of Elections led to ‘an honest mistake’.”

That man was later admitted to another polling location.

Philadelphia City Commissioner Al Schmidt, a Republican, told CNN earlier this week that the 2020 Presidential Election was the most transparent and secure election in the city’s history.

“If evidence of widespread fraud or evidence of any fraud at all, is brought to our attention, we take a look at it and we refer it to law enforcement as we always do in every election,” said Schmidt. “I have seen the most fantastical things on social media, making completely ridiculous allegations that have no basis in fact at all.”

And Carr says there were plenty of Republican poll watchers who had been admitted to the location she was in that day.

“The other Republican poll watchers stayed there with us the entire time,” Carr said. “[They] were like ‘I don’t know what was wrong with him. He was really disrespectful.’ So I think this whole ploy as to not being allowed access is just a ploy. People were feeling uncomfortable and there was a lot of commotion so at that point it was just like ‘you need to step outside [or] we need to call the cops’.”

‘Poll watchers are not specified in the election code to be present during the canvassing of mail in ballots’

Amid a recent flurry of litigation against Philadelphia’s election infrastructure by the Trump campaign and Republican petitioners, poll watchers have been in the middle of pending legal battles about their rights under the State’s election code.

Pennsylvania House of Representative Donna Bullock, a Democrat who represents the 195th District, says this is not the first time the integrity of Philadelphia’s elections have come under scrutiny from the GOP. And there’s a historical precedence for this.

“There is an attempt [from Republicans] to cast a shadow over mail-in ballots as being fraudulent from the very beginning,” said Bullock. “If you listen to the terms that are being used by the GOP, [it’s] the term ‘legal votes. Count every legal vote’. [They are trying to] discredit mostly those votes coming from our cities, cities like Detroit, Philly or Atlanta, cities that really turned up the mail-in ballot votes and represent high percentages of Black and brown folks.”

On November 4, 2020, the Trump campaign alleged that poll watchers did not have sufficient proximity to canvassing in Philadelphia’s Convention Center and requested that they be allowed to move closer to ballot counters in order to see the text on the outside of the ballots. While the presiding judge within the City’s Court of Common Pleas that day denied this motion — stating that “[watchers] are directed to observe and not to audit ballots” — this ruling was appealed and quickly reversed by the Pennsylvania Commonwealth Court, ordering that “all candidates, watchers, or candidate representatives be permitted to be present for canvassing processes” within six feet, pursuant to the current absentee and mail-in ballot statute in the state of Pennsylvania.

But according to Marian Schneider, Elections and Voting Rights consultant for the ACLU, “[poll watchers] are not specified in the election code to be present during the pre canvas-[ing] and canvassing of absentee and mail in ballots”. Act 77, which was passed on October 31, 2019, is the amended election code in Pennsylvania that governs election protocol in the state. It’s a landmark election reform bill that expanded early and mail-in voting options for Pennsylvanians, and provided substantial funding for new voting machines across the state’s many counties. And this effort was largely led by the State’s Republican legislature. Prior to its passing, poll watchers were explicitly granted rights to oversee the opening of mail-in and absentee ballots, mainly because absentee and mail-in ballots have traditionally been sent to local precincts and polling locations where watchers complete their Election Day duties. But the new election statute that dictates canvassing procedures for mail-in and absentee ballots is silent on the role of poll watchers in this process.

That gap in the state law is especially pronounced this year.

“When we passed this legislation last year, we did not anticipate a pandemic and that we would be using mail-in ballots at a higher rate than if we did not have the pandemic,” Representative Bullock explained.

‘There was never a time where there was no observation’

Historically, poll watchers ensured that the polling locations were operating properly and within the law and encouraged more people to vote.

“Watchers are part of in-person Election Day procedure,” explained Schneider. “They’ve been around for a long time. They’ve mainly been used to get out the vote. They keep a list and they check off who came to vote. And at various times throughout the day the party calls the people who haven’t showed up and tell them to go vote.”

So where is all the recent confusion and claims of voter fraud surrounding poll watcher rights coming from?

“The way the election code was set up [before Act 77], it said that absentee and mail-in envelopes will be opened in the presence of watchers,” said Schneider. “Well yeah, if they were opened at the polling place, that makes total sense.”

But now mail-in and absentee ballots are counted centrally at the county election office — not at local precincts. And in Philadelphia, due to the unprecedented number of mail-in ballots this year, election officials are counting these ballots at the Pennsylvania Convention Center. More importantly, the new pre-canvas and canvas procedures for mail-in and absentee ballots explicitly leaves out any mention of watchers. On the contrary, it only dictates that “authorized representatives” of each candidate be present. These are people that candidates or parties designate to represent them. Schneider says they can be attorneys but they don’t have to be.

“And so obviously Philadelphia was complying with that,” said Schneider. “The representatives of the Trump campaign and the Republican Party were in the Convention Center rooms at all times. There was never a time where there was no observation.”

Congressman Dwight Evans, a Democrat who represents Pennsylvania’s 3rd Congressional District, says widespread claims of voter fraud on behalf of the Trump campaign are unfounded.

“It was an open and transparent process and there appears to be no basis from these allegations,” said Congressman Evans. “It’s very unfortunate that President [Trump] can’t accept that reality. They counted the votes in a very open way. The number works against him.”

Almeida says that ultimately the election code is silent on how far away poll watchers are supposed to stand from ballot counters as they open votes.

“The arguments that were being made are that given what poll watchers are able to do [by law] in the canvas, they were standing too far away to effectively do that,” said Almeida. “But it’s worth noting that poll watchers even in canvas have limited abilities to interfere. There is an oversight component but it is limited.”

Schneider of the ACLU says there’s been a tenfold increase in mail-in voting since the last presidential election. Mail-in and absentee voting is nothing new, but the sheer increase in volume has made a difference. That has resulted in more sustained attention on the processing of election results than ever before.

“This is good,” said Almeida. “But this can also lead to confusion. It’s important for folks to know that there are safeguards in place, that our democracy is based on one person, one vote and that every single one of those votes need to count.”