DOJ Election Monitors Exclude FBI and ICE Agents

DOJ election monitors sent to polling places for the Nov. 3 midterms will not include anyone from the FBI or Immigration and Customs Enforcement, the Justice Department told a federal court in Washington this week. The sworn declaration, filed Oct. 28 in a lawsuit brought by the NAACP, narrows a monitoring program that civil rights groups and immigrant communities feared would put immigration agents inside voting sites, but it says nothing about ICE enforcement near the polls outside that program.

The declaration lands five days before Election Day, after lawsuits from Arlington County, Denver and voting-rights groups over the prospect of armed federal agents at polling places, and amid federal noncitizen voter investigations that have already drawn a court injunction. For naturalized citizens, it settles who the monitors will be, and little else.

Who the DOJ election monitors will be, and what they may do

The four-page declaration comes from Eric Neff, acting chief of the Voting Section in the Justice Department’s Civil Rights Division, according to Law&Crime and IBTimes UK. Monitors will be drawn from the Federal Bureau of Prisons, the Bureau of Alcohol, Tobacco, Firearms and Explosives and the Drug Enforcement Administration, Reuters reported. The only Homeland Security employee taking part is a single Customs and Border Protection staffer assigned to the Justice Department, who will serve on behalf of the Civil Rights Division rather than DHS, according to both Law&Crime and IBTimes UK.

Monitors may not carry firearms, will not exercise law enforcement authority while on election duty, must wear business-casual clothing with no agency insignia, and are limited mainly to observing and taking notes, according to Reuters, Law&Crime and Newsmax. They may talk to voters only outside a polling place, only after those voters have cast ballots, and only if the voters are willing. Neff wrote that the department is acting “in a similar manner and for similar purposes as in past election cycles going back decades,” Law&Crime reported.

The Justice Department has sent election monitors for decades under the Voting Rights Act and court orders. What drew the NAACP’s suit, filed Oct. 2 against the division and Assistant Attorney General Harmeet Dhillon, was the department’s description of about 1,000 monitors and its refusal to say where they would go or who they would be, IBTimes UK and Law&Crime reported.

U.S. District Judge Sparkle L. Sooknanan denied the NAACP’s emergency request on Oct. 22, according to IBTimes UK and Law&Crime. Neff opposed releasing a location list, telling the court, according to Law&Crime, that disclosure “would undermine” the effort and “potentially put our monitors at risk” because outside groups plan to watch the monitors. The NAACP’s general counsel, Kristen Clarke, said in a statement reported by IBTimes UK that the group remains “determined to pull back the veil” on the plan.

What the filing does not settle for immigrant voters

The declaration describes one program. It does not commit ICE to staying away from polling places for other reasons. Homeland Security Secretary Markwayne Mullin said Sept. 1 that “the only reason why we would be at polling places is if there is a threat to that polling place,” a statement Arlington County quoted in its lawsuit.

That is where 18 U.S.C. 592 comes in. The 1865 statute makes it a crime for any person “in the civil, military, or naval service of the United States” to bring or keep “troops or armed men” at a place where an election is held, unless needed “to repel armed enemies of the United States.” Unarmed monitors without police powers are unlikely to trigger it. Whether Section 592 reaches an armed ICE officer making an arrest at a polling site is the untested question at the center of the Arlington and Denver suits, and no court has ruled on it.

The stakes are not small. About 23.8 million naturalized citizens were eligible to vote in 2022, roughly 10% of the U.S. electorate, according to a Pew Research Center analysis of Census Bureau American Community Survey data. For them, the monitoring fight plays out alongside the Justice Department’s noncitizen voting reviews.

Two practical points follow from the declaration itself. A monitor is not an officer and has no power to detain anyone or demand documents. And because monitors may interview only willing voters after they vote, a voter can decline to talk, a point the NAACP has stressed in its public statements.

What to watch before Nov. 3

NAACP v. Dhillon: whether Judge Sooknanan orders any records released, including monitor locations, before Election Day.
Arlington and Denver suits: any ruling on whether Section 592 bars armed ICE officers at voting sites, alongside a pending ruling on DOJ warnings about noncitizens on voter rolls.
The election-week record: whether any ICE activity is reported at or near polling places, the scenario the declaration does not address.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds an LL.M. from California Western School of Law, San Diego and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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