This is The Marshall Project’s Closing Argument newsletter, a weekly deep dive into a key criminal justice issue. Want this delivered to your inbox? Subscribe to future newsletters.
Cops practicing law. It’s a disparaging phrase muttered in some legal circles to describe cases where police officers apply erroneous interpretations of the laws they enforce.
It can also reflect a broader cynicism toward police involvement in matters best left to lawyers or, in the case of the upcoming Nov. 5 election, voting experts.
Loyola University law Professor Justin Levitt understands those sentiments, so much so that it could seem like a contradiction for him to champion a recent requirement that all Georgia police officers take an hour-long course in election law.
Levitt served as the White House's first senior policy advisor for democracy and voting rights under President Joe Biden, and as a constitutional law scholar, he’s well-versed in the history of police disenfranchising some voters — particularly in the Jim Crow era. But he still wants a chance to explain why it’s a good idea for members of your local police force to learn as much as they can about topics like voter intimidation and election interference.
The most important part of the training, he said, should be ensuring that an officer’s first instinct is to call an attorney or election official for technical matters related to voting instead of trying to interpret the laws themselves. With this foundation, Levitt adds, the key benefit of police officers getting election training is to keep them from hindering the voting that should be happening at U.S. polling places.
“There’s times where you’re going to want them there, and there’s times you won’t want them there,” Levitt said of the police. “Either way, it’s better that they know what they’re doing.”
Specifically, Levitt believes that officers knowing the voting laws may prevent them from allowing politicians to use them to control the voting process, while still ensuring they are properly enforcing laws applicable to their jurisdictions — like gun bans at polling places.
This summer, a vote by the Georgia Peace Officer Standards and Training Council made the state the first in the U.S. to mandate a course in election law as part of basic training for new officers at police academies. Though the course won’t become an official part of the curriculum until January, the council officials pushed all current officers to complete the course right away so they can be ready for next month’s presidential election.
Chris Harvey, the council’s deputy executive director, is also a member of the Committee for Safe and Secure Elections, a bipartisan group of experts in elections administration and law enforcement. Harvey said he has conducted nine regional trainings for law enforcement agencies across Georgia since January, and has also held sessions in states like South Carolina, Michigan and Hawaii.
Harvey says the core of the training is not for officers to know the intricacies of local election laws, but rather to know what responsibilities they have to ensure elections run smoothly.
Take Georgia’s ban on voters wearing clothing with a candidate’s name at a polling site, for example. Harvey says it’s up to a poll worker to ask a voter who shows up wearing a candidate’s T-shirt to change, turn the clothing inside out or cover it. The only time law enforcement should step in is if the voter refused, threatened the worker or otherwise caused a disruption that hindered other people from voting.
“Our first rule is like the Hippocratic oath, to do no harm,” Harvey said. “But if it’s a matter where law enforcement would clearly have to get involved even if it wasn’t happening at a polling site, then the cops shouldn’t have to call anyone to know they need to intervene.”
In other places, like Maricopa County, Arizona, and Green Bay, Wisconsin, police chiefs and sheriffs have decided on their own to have election training for their officers. That includes meeting with local elections officials to understand their specific Election Day needs.
In San Marcos, Texas, police officers are getting training on how to properly respond to voter intimidation, but only as part of a $175,000 settlement last year between the city and four Biden-Harris campaign supporters. The supporters sued police for failing to keep a caravan of Trump supporters from harassing a Biden campaign bus on a Texas highway days before the 2020 election.
As much as police can impede voting by not doing enough, critics say doing too much on Election Day can be just as bad. In Indiana, after Secretary of State Diego Morales sent out a mailer to elections officials encouraging them to have local law enforcement present at the polls in case of any problems, a coalition of voters’ rights organizations pushed back.
A letter from Common Cause Indiana, the ACLU and other groups raised concerns about voters having to come face to face at the polls with the same officers who overpolice some of their neighborhoods.
“Law enforcement presence won’t create a welcoming environment for voters and could cause intimidation and have a chilling effect on voter turnout,” members of the coalition wrote in the June 11 letter.
Green Bay Police Chief Chris Davis said earlier this year that he decided that it would be best for his officers to stay away from polling sites as much as possible during elections. He said they’ve developed an alternate plan to help elections officials maintain a smooth voting process.
Those strategies could be as simple as making sure police officers are available to quickly handle matters that could indirectly impact someone’s right to vote. A car accident or a stolen wallet, for example, is a hindrance on a normal day, but on Election Day it could take away a voter’s only chance to cast a ballot if police take too long to respond. Harvey says for other police departments, having officers at polling places in plainclothes can also put them in positions to help when necessary, without their presence intimidating voters.
Levitt and others stress, however, that election-law training for police officers should have begun months ago. Any crash course that begins in a police precinct today, Levitt said, is happening far too late.
