Earlier this week, the assistant attorney general for civil rights, Harmeet Dhillon, told Bloomberg that she would deploy 1,000 monitors to watch the November midterm elections, calling it “something that DOJ does.”
The next day, the Department of Justice announced that it would send more than 75 monitors to 200 polling locations across five states — Arizona, Florida, Michigan, Minnesota and Wyoming — during this year’s primary elections, “to ensure transparency, ballot security, and compliance with federal law.”
But is Dhillon’s announcement, in fact, consistent with how and when prior administrations have used election monitors and their close cousins, federal observers?
As the department’s own website explains, there are two types of election monitors that it can use.
First, the Civil Rights Division, headed by Dhillon, can use “federal observers,” who are recruited, trained and supervised by the Office of Personnel Management, once they are appointed under a federal court order pursuant to the Voting Rights Act. Only three jurisdictions in the country — in Louisiana, New Jersey and Rhode Island — are currently under orders permitting the use of these observers. Given that, it would seem that these are not the kind of monitors Dhillon has been talking about.
Second, the DOJ can assign “one or more attorneys and staff members” to monitor polling places on Election Day to assess compliance with federal voting rights laws and to maintain contact with state and local officials.
The potential problem is that this November, Dhillon is not just considering sending one or even a handful; she is imagining an army of roughly 1,000.
The department’s most recent guidance on election monitors — as well as its historical practice — is memorialized in “Federal Prosecution of Election Crimes,” an almost 300-page manual in its eighth edition. That manual isn’t for outside audiences and it is not itself law; it merely establishes internal Department of Justice guidance to help federal prosecutors and investigators, making clear that it’s not intended to be a playbook for DOJ litigation strategies.
The manual also makes plain that the kind of election monitors Dhillon has proposed sending across the country en masse are appropriate under limited circumstances, with due consideration for states’ own election-related laws, and only to ensure voters’ rights are respected.
For example, the manual notes, “Federal agents may not be stationed at open polling places, except in cases of discrimination covered by the Voting Rights Act, or as part of the Civil Rights Division’s oversight obligations,” as detailed in the Help America Vote Act. That is the case, the document explains, “even though there might be a reasonable basis for believing that criminal activity will occur there.”
The manual cites two primary reasons for that policy: state laws governing who can be inside open polls and the federal statute that bars the federal government from putting armed men at places where elections are taking place. Indeed, under most states’ laws, the manual explains, “no one except voters, election administrators, and perhaps party representatives may serve as poll watchers, or even approach closer than fifty to one hundred feet from an open poll.”
It acknowledges that federal law does not rule out unarmed federal personnel, such as Justice Department lawyers, from actually going into polling places if allowed under state law or by local election officials.
But at no point does the manual frame that choice as optimal, stating only that it is an option in “appropriate” circumstances and in consultation with the Public Integrity Section, a Justice Department division that has been dramatically reduced since Trump returned to office.
The manual also provides that even where there is alleged voter fraud with respect to the casting or counting of votes, a criminal investigation should not be undertaken until after the election is over, meaning that the results have to be certified and any recounts or litigation concluded.
Overall, “Federal Prosecution of Election Crimes” portrays election monitoring as justified in relatively few situations and with care that Election Day observations do not become immediate investigations.
Perhaps not coincidentally, that document is no longer available on the DOJ’s website, to the consternation of Senate Democrats.
But former DOJ lawyers who have expertise in the prosecution of election crimes and the enforcement of civil rights statutes that cover voting are in ample supply.
One former DOJ lawyer familiar with these areas, speaking to MS NOW anonymously for fear of retribution, confirmed that in their experience, the department has deployed election monitors to identify or prevent violations of federal law “in the civil rights arena,” not to suss out alleged fraud or preserve ballot integrity.
If the DOJ under previous administrations had concerns about election fraud, the lawyer said, it would not send election monitors to polling sites but would instead be “far more discreet” and would partner with state and local law enforcement to handle those concerns “without creating a firestorm.”
The goal always, the lawyer said, was to avoid inserting federal personnel into the election, especially when state and local laws allow people affiliated with political parties or candidates to observe the casting and counting of votes.
The lawyer further told MS NOW that if an election monitor observes what looks like fraud, the right response “is not to call uniformed FBI.” The Justice Department has long understood the need, they said, to “mitigate and respond differently” than it would in a non-election setting, recognizing that state and local governments run elections. The lawyer also noted the importance of holding — and finalizing — elections without federal interference.
In other words, both written guidance and past practice indicate that sending out a massive wave of DOJ election monitors is neither necessary nor even advisable.
The numbers themselves suggest as much: As CBS News reported earlier this week, fewer than 300 DOJ staff were sent to polling places in the last midterm election in 2022, and just over 700 were sent in the last presidential election.
So why send 1,000 DOJ personnel to monitor elections, especially when the Civil Rights Division — from which these monitors are heavily recruited — has seen a large exodus after Dhillon took the helm last year? Dhillon has insisted the division would align itself with President Donald Trump’s priorities, which could point toward the answer.
More context may also come from Thomas Lane, the director of secure elections policy at the America First Policy Institute, the think tank that has been affiliated with multiple current and former White House senior staff members and Cabinet officials.
In a piece on AFPI’s website, Lane argues that “a robust DOJ election monitoring program deters misconduct, improves public confidence, provides real-time visibility into recurring problem areas, and helps ensure that federal voting rights protections are enforced before local failures escalate into larger disputes.”
The question is, whose confidence and which problems are this DOJ invested in?
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