Bracing for unlawful militias and vigilantes at the ballot box

Just six days before Election Day, The Dickinson Press in southeast North Dakota received an anonymous email: “I will blow up the voting location in Stark Co.”

The email was signed “The Proud Boys,” the paper reported, and police quickly arrested a 33-year-old man by tracking an IP address. It’s exactly the kind of attempt at voter intimidation that election officials are dreading across the West — and the rest of the country.

Neo-fascist, often heavily armed, white supremacist groups like the Proud Boys have been encouraging their members to volunteer as poll watchers, and unlawful militias like the Oath Keepers have also promised to be at the polls Tuesday.  The more extreme activities of such groups — such as the recent plot by far-right militia to kidnap and possibly assassinate the Michigan governor — can and have been thwarted by law enforcement, but only if there is sufficient warning beforehand.

Rumors of civil unrest on the right have permeated the conversation for months now, even before the first presidential debate in late September, when President Donald Trump was asked to denounce white supremacy. Instead, Trump told the Proud Boys to “Stand back and stand by.” The words were interpreted by the Proud Boys and other extremists as a call to arms, and many began planning to show up at poll sites.

“We're really seeing a toxic scenario unfolding where Trump and Republicans are really counting on some far-right militias and street forces to show up to polling places and intimidate voters,” said Ben Lorber, research analyst for Political Research Associates, a social justice think tank that monitors far-right movements and violence.

In recent months, private militias across the country have reacted angrily to pandemic lockdown measures, and they have shown up in force at anti-fascist and Black Lives Matter protests, as well as at demonstrations against racist and colonial monuments — at times with the open support of local law enforcement.

“In other cases where police thank them for assisting directly or otherwise offer tacit support, the groups feel empowered to either complement the police or represent the police elsewhere.”

“If militia groups are told repeatedly that they are not wanted and not needed by local police, they have sometimes stood down,” Hampton Stall, editor and researcher for MilitiaWatch, wrote over Twitter. “However, in other cases where police thank them for assisting directly or otherwise offer tacit support, the groups feel empowered to either complement the police or represent the police elsewhere.”

A recent report by Armed Conflict Location & Event Data and MilitiaWatch analyzed 80 militia groups over the past few months to pinpoint states at risk for militia activity during and after the presidential election. In the West, the report rated Texas, California and New Mexico as being at “moderate risk,” while Oregon was placed at “high risk.”

Fortunately, there are tried-and-true responses state officials and law enforcement can employ to prevent voter intimidation and discourage armed groups from assembling. Using laws already on the books, states can convince law enforcement of the unlawful nature of private militias.

Without exception, the Western states’ constitutions prohibit private, unauthorized militias, and nearly all of them have banned criminal paramilitary activities, such as weapons and explosives training for the purpose of “civil unrest.” Only the governor or a chosen designee can activate a militia — meaning the National Guard — and many states classify unauthorized paramilitary activities as a felony. And yet little has been done to prevent private militias from forming in the first place and assuming the functions of the National Guard or local law enforcement.

In the wake of the deadly Unite the Right rally in 2017, when hundreds of white supremacists and armed groups descended on Charlottesville, Virginia, attorneys from Georgetown University’s Law Center filed a civil suit on behalf of the city and local businesses against a number of militias, citing their violent paramilitary activities during the rally. This is how Mary McCord, attorney and legal director at the Law Center’s Institute for Constitutional Advocacy and Protection, developed an understanding of state laws on “unlawful private militias.”

The case resulted in court orders preventing those armed groups from returning to the city and attending rallies.

“I think a lot of the reason we haven't seen a lot of enforcement action has been the mythology about the Second Amendment,” McCord told High Country News, “that somehow it protects this (paramilitary) activity, particularly in an open-carry state.”

The Supreme Court in 1886, and again in 2008, decided that the Second Amendment “does not prevent the prohibition of private paramilitary organizations.”

Militias often claim that the Second Amendment, which protects the right to bear arms, allows private citizens to assemble “a well regulated militia” of their own. Yet that is not the case: The Supreme Court in 1886, and again in 2008, decided that the Second Amendment “does not prevent the prohibition of private paramilitary organizations.”

And states have responded accordingly: Nearly all the states’ constitutions prohibit private, unauthorized militias from assembling and conducting activities reserved for the state’s National Guard and law enforcement. Some states, like Alaska, have no criminal statutes prohibiting militias or paramilitary activities, though they’re still considered “unlawful.” Many states have further criminal statutes outlawing paramilitary activities. And yet militias are rarely challenged by law enforcement.

Take New Mexico, which has spent the last seven months working to find a proactive approach toward election safety following some well-publicized violent incidents.

Bernalillo County in New Mexico has been keeping its eye on unlawful militias, ever since the so-called New Mexico Civil Guard began appearing at demonstrations against police brutality and colonial monuments, such as the controversial Juan de Oñate statue in Albuquerque, which has since been removed. In a civil suit complaint, the state wrote the group “usurped law enforcement authority,” noting that “New Mexico law forbids unregulated private security forces and unregulated paramilitary organizations because they are not accountable to the people, they pose a threat to public safety, and they encourage rather than deter or quell violence.”

“It's not about you being on the left or the right,” said Raúl Torres, Bernalillo County district attorney, speaking as part of an online panel. “It's about whether or not you're armed, organizing trainings and holding yourself out as a paramilitary unit.” 

“It seems like the threat of armed militias right now is very low,” said Heather Ferguson, executive director of Common Cause New Mexico, a nonpartisan public interest group that is focusing on voter protection. “It should be something that should help the voters feel safe in going to go vote.”

Common Cause New Mexico has partnered with the local American Civil Liberties Union and the Bernalillo County district attorney to provide on-the-ground monitoring of election sites. They’ve assembled over 700 field volunteers assigned to voting sites as poll monitors, covering every single county in the state. A team of 50 attorneys will manage an election hotline, listen to voter complaints and collect reports from poll monitors, ready to go to court, if need be.

“The New Mexico Civil Guard — their leadership has dissolved because of the litigation and the charges and investigation going on with the Bernalillo County district attorney's office,” said Ferguson. Despite the widespread fears concerning violent extremists, New Mexican voters may be relatively safer from confrontations by such armed groups than citizens in other, less well-prepared Western states. 

However, there’s no easy solution to the country’s dangerous and growing militia problem. As Hampton Stall of MilitiaWatch put it on Twitter, “These lawsuits and crackdowns only really get at the symptoms of militia groups — mainly the violence that happens alongside them — and likely won't do too much to stop militia groups from forming in the future.”

This map shows the militia laws in every Western state, according to Georgetown University Law Center’s Institute for Constitutional Advocacy and Protection. It also indicates the potential risk of militia activity during and after the presidential election, according to a report by Armed Conflict Location & Event Data and MilitiaWatch.

Kalen Goodluck is an editorial fellow at High Country News. Email him at [email protected] or submit a letter to the editor.

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