Kristen Clarke [Co-Director, Political Participation Project, NAACP Legal Defense Fund]: "Polling places should be intimidation-free spaces in which all voters are able to freely cast their ballot without interference or obstruction. Both federal law and a number of state laws include provisions that are aimed at ensuring that voters do not face intimidation during elections. The deployment or mere presence of law enforcement, or the prosecutors who work in tandem with them, can have the effect of discouraging and deterring minority voters at the polls on Election Day. Indeed, in those communities where law enforcement officials have had an Election Day presence, citizens believe that the deployments were made with the knowledge of their intimidating impact. The mere presence of criminal prosecutors inside polling places may, in many instances, intimidate the very voters that the Voting Rights Act seeks to protect.

Plainly, criminal prosecutors inside the polls can intimidate voters. Indeed, this threat is one that has been acknowledged by the current Administration. As recently as November 16, 2006 [webcast available], former Assistant Attorney General Wan Kim of the Civil Rights Division observed that "[f]ederal prosecutors being involved in voter access issues would lead to intimidation of voters at the polls." In addition, in recent testimony before the U.S. Commission on Civil Rights, William Welch, Chief of the Public Integrity Section of the Criminal Division acknowledged that "the Civil Rights Division is responsible for protecting the right to vote" while "other Department prosecutors throughout the country…prosecut[e] those who corrupt elections." Moreover, the well-publicized voter fraud prosecutions mounted by various U.S. Attorney's Offices in recent years, pursuant to former Attorney General John Ashcroft's Ballot Access and Voter Integrity Initiative, makes the chilling effect that criminal prosecutors can have inside the polls clear.

The Department's past use of criminal prosecutors as monitors inside the polls conflict with a number of state statutes that specifically seek to prevent intimidating activity inside of and near polling sites during elections. These statutes intend to prevent any form of undue influence or intimidation that may interfere with a citizen's free exercise of her right to vote, with a focus on the need to bar law enforcement presence. Collectively, these statutes embody the recognition that the mere presence of any law enforcement activity in or around polling places may have a detrimental effect on the free exercise of the right to vote. And this risk has been met with laws which aim "to insure [an] atmosphere at the polling place [that is] free from intimidation of any sort."

Although the above cited election statutes do not explicitly reference criminal prosecutors, the reality is that Criminal Assistant U.S. Attorneys and other federal prosecutors work in tandem with Federal Bureau of Investigation (FBI) agents and other law enforcement personnel to carry out their duties. Particularly in small communities, these criminal prosecutors are easily recognizable and well-known and thus, there is no way to neutralize the public's perception that the Department's attorney monitoring efforts are unduly influenced by criminal law enforcement objectives when they should be focused on voter access. Moreover, the Department's use of criminal prosecutors compounds existing problems of suppression and intimidation already faced by voters. The Civil Rights Division's recent announcement that it will terminate the practice of using criminal prosecutors as poll monitors is an important development this election cycle that can help ensure that minority voters are less likely to encounter or face intimidation this November."