As tensions mount ahead of Election Day, a legal battle in Michigan is highlighting fears some officials and civil rights groups have about what will happen when people show up at polling sites with guns – which is legal in numerous jurisdictions across the United States.
Michigan, already the site of election-year unease, was thrust into the center of the armed-voter debate after state officials announced a ban on openly carried weapons at polling sites, saying guns could intimidate voters or election workers. Gun rights groups challenged the move in court and have argued it forces Michigan residents to choose between their right to vote and their right to bear arms.
Many Americans will be able to show up at their polling locations with guns, something that has unnerved law enforcement officials and experts nationwide at a time of pitched anxiety over whether clashes or violence could break out before, on or after Election Day. Gun rights supporters argue that law-abiding gun owners should be able to continue carrying their weapons where doing so is allowed.
Exactly where that is allowed varies widely, echoing the way the country’s election processes vary from state to state.
“There are no national rules on guns in polling places,” said Adam Winkler, a law professor at the University of California, Los Angeles and an expert on the Second Amendment. “As with so much about our election system, these things are decided by the states. And because there are 50 different states, there is a wide variety of rules regulating guns at polling places.”
According to the Giffords Law Center to Prevent Gun Violence, which supports stricter gun laws, six states and D.C. ban firearms at polling locations entirely, while another four ban concealed weapons at these spots. Guns might also be outlawed at some polling locations by virtue of where they are housed, such as a church or a school, Winkler said.
The issue has come up during previous elections, but it is gaining more attention this year, given the fraught atmosphere leading up to Election Day next week. President Donald Trump’s attacks on the election and comments urging his supporters to monitor voting sites also have exacerbated some fears of possible tensions at and around the polls.
Police have said they are undertaking unusually extensive planning in advance of Nov. 3 to prepare for possible voter intimidation or violence, deploying more officers and gaming out possible scenarios.
Already, tensions and allegations of voter intimidation have been emerging at early-voting sites, which have seen tens of millions of people cast ballots. Police have said that on Election Day they will be watching for any voter intimidation to help people vote safely and securely.
Michigan Secretary of State Jocelyn Benson, a Democrat, invoked the possibility of voter intimidation when she announced this month that she was banning people from openly carrying guns at or around polling places.
“The presence of firearms at the polling place, clerk’s office(s), or absent voter counting board may cause disruption, fear, or intimidation for voters, election workers, and others present,” Benson, the state’s top elections official, wrote in her directive, issued on Oct. 16.
Benson wrote that she was banning openly carried firearms in any polling place as well as “within 100 feet of any entrance to a building in which a polling place is located.” Her directive also said that if a person was outside that 100-foot space and “acting in a way that would tend to intimidate, hinder or impede voters on the way to the polls,” election officials should contact law enforcement.
Her move prompted a lawsuit from three pro-gun rights groups, who said Benson “makes an unsupported correlation between mere possession of a firearm and voter intimidation” and argued that her directive was “conjured without any legal basis or authorization under Michigan law.”
James Makowski, an attorney for Michigan Gun Owners, one of the groups that brought the lawsuit, said in an interview that people have carried their weapons openly at Michigan polling sites with no issues for years and called the idea that doing so is a problem “a fabrication out of thin air.”
Benson’s directive does not apply to law enforcement officers on the job. It also does not mention people carrying concealed firearms beyond noting that doing so will remain banned in any building where it was already prohibited. Makowski said that because most polling places are in churches and schools – where concealed carry is already largely prohibited – her order functions as a “near-blanket prohibition.”
Benson’s office did not respond to requests for comment about the litigation. The lawsuit also names Michigan Attorney General Dana Nessel, a Democrat, and Col. Joe Gasper, director of the Michigan State Police, as defendants. Nessel’s office declined to comment on ongoing litigation, and a state police spokesman did not respond to a request for comment.
Benson’s directive also prompted some pushback from law enforcement officials, including Michael Murphy, sheriff of Livingston County, Mich., who said in a video statement on Facebook that he would not enforce Benson’s directive: “I’m a law enforcement officer, not a directive enforcement officer.”
While Murphy said that “open carry is not against the law,” he also asked people who might “want to thumb the nose and open carry just because they can” in defiance of Benson’s order to avoid doing so because of the escalated tensions in the country.
Other officials have spoken out against armed individuals seeking to have a presence at voting sites.
Minnesota Attorney General Keith Ellison, a Democrat, had criticized a private security company that sought out former Special Operations personnel to guard polling places, saying “armed outside contractors at polling places would constitute intimidation and violate the law.” The group has since canceled its plans, Ellison announced over the weekend.
Wisconsin Attorney General Josh Kaul, a Democrat, said that his state, which allows concealed carry, has no “statewide laws governing firearms in polling places,” though many voting sites are in schools, where guns are already banned.
The key factor in carrying a gun at a polling place is whether the person seeks to intimidate voters, which is a crime, Kaul said in an interview. He said that someone with a concealed weapon might come and go without anyone noticing, which would not interfere with another voter.
“If somebody is bringing a firearm to a polling place in any way that is creating a disruption or interference, I think there should be action taken to make sure that interference isn’t happening,” Kaul said.
The rules vary nationwide, including in places not necessarily known for their gun restrictions. In Texas, “no one except licensed peace officers may carry handguns into the polling place,” according to the secretary of state’s office. Georgia has a similar restriction that stretches out 150 feet from any polling place, the secretary of state’s office said.
North Carolina does not have a specific law in place about guns at polling sites, and whether guns can be carried in specific buildings being used for voting depends on the rules already in place for those locations, according to Patrick Gannon, a spokesman for the state’s Board of Elections.
Pennsylvania allows for people to openly carry guns without permits everywhere except Philadelphia, which requires a permit, something that extends into polling places, according to the office of Josh Shapiro, the attorney general.
While legally carried guns are allowed both inside and adjacent to Pennsylvania’s polling places, they are generally not allowed at schools or court facilities that would otherwise ban them, according to Wanda Murren, a spokeswoman for the Department of State. Her agency also issued guidance this month that included “aggressive or threatening brandishing of weapons” as an example of voter intimidation, warning that people who intimidate voters can face fines of up to $5,000 and up to two years behind bars.
Murren said her agency and its partners in an election preparedness and security working group – including the state police, the governor’s office and the state Emergency Management Agency – have sought to prepare for multiple scenarios that could affect polling locations this year.
Supporters of stricter gun-control measures have called for more widespread policies that declare firearms off-limits in such places. The Brady Campaign to Prevent Gun Violence has created a petition urging state and local officials to declare polling places gun-free and said that “Armed intimidation at the polls is voter suppression, plain and simple.”
Gun rights supporters, meanwhile, argue that such a ban would force people to choose between two protected rights.
“You should not have to choose which of your constitutionally protected rights you can exercise,” said Erich Pratt, senior vice president of Gun Owners of America, a pro-Second Amendment group. “You should be able to exercise more than one at the same time.”
Winkler, the UCLA professor, said people have “reason to be concerned” heading into this election’s final days. Winkler also said that if someone sees a gun and feels intimidated, it might discourage them from voting, so he came down on the side of not wanting guns in voting sites.
“Polling places are not the kind of place where firearms are likely to do any good,” he said. “And given the history of voter intimidation in America . . . it’d be best to prohibit guns in polling places.”