Inside DOJ’s Election Monitoring Program, Past and Present

Red Line for Civil Rights explains what election monitors can and can’t do.

Polling location. (Source: Red Line for Civil Rights)

This article was originally published on the website of Red Line for Civil Rights, an organization created by former U.S. DOJ Civil Rights Division attorneys that documents and analyzes changes in federal civil rights enforcement. The article was written by Regan Rush and Stephanie Berger. It has been reprinted with the permission of the authors and Red Line.

States and local officials run elections. But for decades, federal monitors from DOJ’s Civil Rights Division have played a narrow yet important role on Election Day: checking compliance with federal civil rights laws to ensure full and equal access to the ballot.

This year, Assistant Attorney General Harmeet Dhillon has pledged to deploy 1,000 monitors, more than triple the number sent for the 2022 midterms, while calling the effort routine, just “something DOJ does.” But DOJ in this Trump administration has recast the program’s purpose in a way it has long deliberately avoided. DOJ now describes election monitoring as a way to root out voter fraud, which is exceptionally uncommon. Dhillon has also described this broader effort as protecting “election integrity.” That framing rests on unfounded claims of widespread fraud.

Prosecuting election fraud has always been the responsibility of DOJ’s Public Integrity Section and U.S. Attorneys’ Offices, not the Civil Rights Division or its monitoring program. The reason for that separation was twofold. The Civil Rights Division’s expertise and purpose are civil rights enforcement, not criminal fraud, and folding fraud investigations into Election Day monitoring risks intimidating or interfering with voters.

Whether this shift in the stated purpose of DOJ’s federal election monitoring will translate into monitors overstepping their historic role remains to be seen. Here’s how the Civil Rights Division’s election monitoring program has traditionally worked, and what’s changed about it so far this election cycle.

A Program Rooted in Full and Equal Access to the Ballot

Since the passage of the Voting Rights Act in 1965, DOJ’s Civil Rights Division has sent monitors to polling places as part of its effort to safeguard the right to vote. The Division selects jurisdictions it monitors for specific reasons tied to voting or civil rights laws the Division enforces.

Among the laws the Division enforces is the Voting Rights Act (VRA), which prohibits discrimination based on race, color, or membership in a language minority group. Section 203 of the VRA currently requires 331 jurisdictions, home to roughly 24 million voting-age citizens in covered language minority groups, to provide language assistance at the polls. The VRA also protects the right of any voter who needs assistance due to blindness, other disability, or an inability to read or write to bring an assistant into the booth.

The Division also enforces the Help America Vote Act (HAVA), which guarantees provisional ballots for voters whose eligibility is in question, the posting of basic information about voting procedures, and voting machines accessible to people with disabilities. Finally, the Division enforces the Americans with Disabilities Act(ADA), which requires polling places to be accessible, including by providing accessible parking spots and wheelchair-accessible routes into the building.

No federal law guarantees entrance for DOJ monitors. (This is different than the federal observer program, which has limited current applicability. Three local jurisdictions remain subject to the statutorily created federal observer program. Over the past decade, the Civil Rights Division has principally used the federal monitoring program on Election Day.)

How DOJ’s Election Monitoring Has Traditionally Worked

Historically, the DOJ Civil Rights Division’s Voting Section has coordinated election monitoring efforts, and prior to the current Trump administration, it had built deep institutional knowledge and consistent norms to carry out its program. That meant a regular process, including identifying which jurisdictions to monitor and why, training and guiding monitors on how to conduct themselves in the field, and giving monitors a clear protocol for flagging problems.

Career staff in the Voting Section identified jurisdictions for monitoring based on facts relevant to the voting rights laws enforced by the Civil Rights Division. Those could include past violations of civil rights laws, ongoing settlement agreements addressing such violations, tips or complaints from community contacts, news coverage, or a jurisdiction’s coverage under Section 203’s language-access requirements. Career staff then submitted written recommendations to the Assistant Attorney General, who made the final decisions on which locations to monitor.

Ahead of each election, DOJ notified the local election officials whose jurisdictions had been selected for monitoring. Although election officials often welcomed DOJ monitors at polling places and invited an open line of communication, some denied entry altogether, requiring monitors to observe from outside the polling place, as no federal law guarantees DOJ monitors access.

The Voting Section spent months recruiting and training volunteers, coordinating logistics, and organizing teams for each jurisdiction. Teams paired newer staff with more experienced attorneys. Training included the purpose and history of election monitoring, what to do and not do at polling locations, and, importantly, team-specific instruction on the particulars of their assigned jurisdiction, including the applicable civil rights laws and how to monitor for those issues on Election Day.

DOJ drew attorneys for election monitoring exclusively from its civil ranks, not its criminal prosecutors. This was a deliberate choice meant to avoid sending anyone with the power to charge someone with a crime, a presence that could intimidate or influence voters.

Election monitors were trained to observe and document, not to intervene, interfere, or hinder the voting process. They could ask poll workers questions related to the monitoring assignment when workers weren’t busy, and monitors could speak with voters, though only after they’d voted or left the polling place unable to vote. Those interviews were always optional, and monitors were trained never to instruct poll workers on how to do their jobs.

On occasion, when an issue could be fixed in real time, monitors had a clear process for raising it on Election Day. In those cases, such as no interpreter in a Section 203 jurisdiction, missing provisional ballots, or a broken accessible voting machine, monitors alerted their team lead, typically a Voting Section attorney with years of monitoring experience. The team lead, after consulting with Section leadership, might then call their designated contact in the jurisdiction’s elections office to flag the issue. It was then up to local election officials to decide what, if any, action to take.

In every other case, monitors would document their observations. After Election Day, Voting Section attorneys would determine whether any follow-up was necessary, from providing guidance to jurisdictions, to entering into a formal agreement, to filing a lawsuit.

What Monitors Explicitly Cannot Do

Federal election monitoring exists within real limits, starting with the U.S. Constitution’s Elections Clause. State and local governments, not the federal government, administer elections, setting polling places, maintaining voter registration lists, and counting ballots. States have their own laws governing conduct at the polls, and local election officials are typically empowered to order any election observer, including DOJ monitors, to leave when necessary to prevent interference or disruptions to the electoral process.

DOJ’s election monitoring program has been guided principally by institutional norms and practice. Congress has, however, drawn a few hard lines of its own to protect the right to vote. Federal laws bar anyone, including federal employees, from intimidating, threatening, or coercing voters or using force or threats of forceagainst voters or election officials. Another law specifically bans government employees from interfering in federal elections. Several of these laws are criminaland carry prison time; others allow private parties, including voters, to seek civil injunctions to stop the conduct directly. The Brennan Center for Justice has cataloged how courts have applied several of these prohibitions, finding they cover tactics like following people, recording license plate numbers, and brandishing weapons. Additional criminal laws bar sending armed personnel, the military, or National Guard troops under federal command to places where elections are held. Criminal law also prohibits members of the military from intimidating voters or interfering with election officials.

Not Typically Part of the Plan? Searching for Election Fraud

The purpose of the DOJ Civil Rights Division’s election monitoring has always been tied to its founding principles and its legal authority to protect the right to vote. Prosecuting election fraud, in the rare instances in which it does occur, has never been a part of that mission and has instead been the responsibility of criminal prosecutors.

The split between the Civil Rights Division’s voting rights work and prosecuting election crimes is baked into DOJ’s own operational regulations. The Division’s only criminal responsibility relative to elections is to prosecute intimidation of voters based on race, color, religion, or national origin. All other election crimes enforcement belongs with the Public Integrity Section’s Election Crimes Branch and the U.S. Attorneys’ Offices. The Public Integrity Section was effectively dismantled under the Trump administration.

Historically, DOJ has not sent criminal prosecutors to monitor polling places. DOJ’s own 2017 election crimes manual, which has recently been removed from its website without explanation, states that criminal investigations must minimize “the likelihood that the investigation itself may become a factor in the election.” It is for this reason that, according to the manual, DOJ generally did not “conduct overt investigations, including interviews with individual voters, until after the outcome of the election allegedly affected by the fraud is certified.” Instead, on past Election Days, the FBI ran a “national election command post” from D.C., in conjunction with prosecutors from the Public Integrity Section and local U.S. Attorneys’ Offices, to ensure appropriate responses to any election security issues. However, the Trump administration has reportedly cut the command center from its 2026 election plans.

There for the Wrong Reasons: This Trump Administration’s Stated Plans for Monitoring the Midterms Don’t Focus on Full and Equal Access to the Ballot

Assistant Attorney General Dhillon has asserted that this election cycle, DOJ will “continue routine, nonpartisan election monitoring that’s been standard under both Republican & Democrat administrations for decades.” Although monitoring during the primaries appears to have been mostly uneventful, DOJ’s stated purpose for monitoring and the individuals involved in the program this year have been anything but the norm.

Dhillon has said that DOJ will monitor “places where there may be voter fraud issues that we’ve seen” alongside monitoring for language assistance and disability access issues. She has also repeatedly given interviews where she talks about election security, integrity, and fraud together with the Division’s plans for monitoring as if they are connected. She told The National News Desk that “we have an apparatus of counting votes and voting that has been hijacked by the left.” No investigation, court, or credible source has ever substantiated that claim.

DOJ’s written communications also evidence a shift in focus. Previous press releases announcing election monitoring referenced “plans to monitor compliance with federal voting rights laws.” But for this election cycle, DOJ has also included references to its mission to “ensure transparency,” “secure ballot integrity,” and ensure “ballot security.” Adding fraud to the Civil Rights Division’s monitoring program risks the very harm that DOJ has long identified and sought to avoid—an investigation that could discourage or influence, even inadvertently, the voters it is supposed to be protecting.

In addition, Dhillon’s pledge to deploy 1,000 monitors, if fulfilled, would go far beyond the scale of previous midterm election monitoring efforts such as those in 2022 and 2018. This scale is also notable given that about 75 percent of the Civil Rights Division attorneys from before this administration, including nearly all of the roughly 30 former Voting Section attorneys, have left. Much of the Voting Section’s work now falls to those who recently joined the Division and have little track record of enforcing voting rights protections, some arriving with questionable elections-related histories of their own. These hires are reportedly part of a broader recruitment drive that has brought more than 80 new attorneys into the Division. A number of the new hires are reportedly steeped in partisan politics and come from organizations with core missions that often oppose what the Division has traditionally protected. Even if DOJ sends out far fewer monitors than promised, it will need to rely on individuals with little or no experience with nonpartisan federal monitoring.

DOJ has also claimed that it will use “the same standard election monitor training” as prior administrations, but if it actually plans to expand its monitoring to include election fraud, that training contains nothing about it.

Without established training for fraud-focused monitoring, DOJ monitors would essentially need to make up their criteria for fraud as they go, which would be particularly problematic for staff who, at best, have minimal election law experience. It’s unclear how such monitoring could take place without illegally profiling voters or running afoul of other laws prohibiting interference.

To be fair, DOJ has so far monitored elections in at least nine states this primary season without much incident. But in Wyoming, two DOJ monitors may have overstepped their bounds. The monitors, who public records indicate were recent Division hires with professional ties to election deniers, were allegedly aggressive and disruptive enough—reportedly even asking to examine vote tabulating machines—that the Republican governor has asked the state attorney general to investigate. We don’t yet know whether Wyoming will ultimately prove to be an anomaly, or whether overreach is the DOJ’s new approach.

Context Matters: Other Actions Indicate that New Motives May Influence DOJ’s Monitoring Efforts

DOJ’s monitoring program for the upcoming midterms must be evaluated in the context of profound changes in the Trump administration’s approach to enforcing America’s voting rights laws. Over the past 20 months, DOJ’s Civil Rights Division has set aside its mission of protecting access to the ballot, instead intruding on states’ administration of elections and directly working to narrow ballot access.

Nowhere is that shift more evident than in DOJ’s unprecedented zeal to obtain unredacted statewide voter registration lists from nearly all states. While 15 states voluntarily complied, DOJ has sued 30 others plus D.C. for refusing to turn over their lists. No court has ruled in DOJ’s favor. Twenty-five federal district courts and one federal appeals court have ruled against it. As one court put it: “There cannot be unbridled consolidation of all elections power in the Executive without action from Congress and public debate. This is antithetical to the promise of fair and free elections . . . and the franchise that civil rights leaders fought and died for.”

With DOJ’s efforts to obtain statewide data blocked by the courts, it took to threats. In July, Assistant Attorney General Dhillon sent letters to all 50 states and D.C. threatening to prosecute election officials if they knowingly allow noncitizens to register or vote. In those letters, Dhillon also argued, contrary to DOJ’s longstanding position, that federal law’s prohibition against systematic programs to remove voters from the rolls during the 90-day period preceding a federal election does not apply to efforts to remove alleged noncitizens. This month the Acting Chief of the Division’s Voting Section followed up with letters to at least 30 states, demanding that they keep records related to the 2024 election because he claims these states’ chief election officials “are currently under investigation.”

DOJ has also worked to narrow ballot access directly. It supported a Republican Party challenge to Mississippi’s bipartisan mail-ballot law, which permits the counting of absentee ballots that are postmarked by Election Day so long as they are received within five business days of the election. Although the Supreme Court upheld Mississippi’s law, DOJ’s leadership celebrated that the litigation had pushed some states to eliminate their own grace periods. In Arizona, DOJ has reversed course on its successful challenge to a state law barring voters who don’t provide documentary proof of citizenship from voting by mail or in presidential elections, filing a brief in support of overturning the very ruling it previously won.

Contrary to DOJ’s own regulations, the Civil Rights Division has recently become involved in prosecuting and promoting the prosecution of election crimes unrelated to its narrow criminal enforcement authority involving discrimination or intimidation based on race, color, religion, or national origin.

None of this is, strictly speaking, part of the election monitoring program itself. But it has happened alongside other administration efforts that have sought to restrict ballot access through the U.S. Postal Service, Social Security Administration, and Department of Homeland Security—a stark backdrop for this year’s election monitoring.

What Comes Next?

Whatever DOJ’s monitors end up doing, they are not the ones running the election. That job still belongs to the thousands of state and local officials who plan, staff, and carry out elections in their own communities. These individuals show up before dawn and stay until the last ballot is cast.

Elections belong to the voters, not to the people watching them. This November, that’s a fact every American voter can act on—make a plan to vote, and follow through.

---

Regan Rush is the Director and Editor-in-Chief of Red Line for Civil Rights, a project of Democracy Forward. Previously, she served more than fifteen years at the Department of Justice, where she held senior leadership roles in the Civil Rights Division, most recently as Chief of the Special Litigation Section.

Stephanie Berger is a Senior Attorney and Editor of Red Line for Civil Rights, a project of Democracy Forward. Previously, she served almost ten years at the Department of Justice in the Civil Rights Division’s Disability Rights Section.