In U-turn, DOJ Says It Has ‘No Problem’ Blocking Federal Agents as Poll Observers

The Department of Justice (DOJ) told a federal judge Monday that it would have “no problem” with a court order preventing it from deploying law enforcement officers as poll observers on Election Day.

“Defendants would have no problem with an injunction that required DOJ to use reasonable efforts to prevent sworn officers from serving as poll watchers,” Justice Department attorney Kathryn Barragan told U.S. District Judge Reggie Walton.

It was an abrupt change for the department.

Recent court filings have indicated that law enforcement officials may be dispatched as part of an unprecedented DOJ effort to monitor Tuesday’s election with about 1,000 observers.

The about-face occurred during a hearing to consider the NAACP’s emergency request that Walton ban law enforcement personnel from serving as monitors. Alternatively, the NAACP asked the judge to prohibit officers from carrying firearms, badges, photographic equipment or conducting law enforcement activities if they serve as monitors.

Walton seemed skeptical of the DOJ’s defense of its surveillance efforts, although he also wasn’t sure whether the NAACP had sufficiently demonstrated the potential for irreparable harm necessary for their request.

Walton, who was appointed by former President George HW Bush, said he would attempt to make a ruling on the matter by Monday at 5 p.m. ET.

Throughout the hearing, there was confusion over whether law enforcement officers would be deployed as observers. A recent court filing from Eric Neff, who heads the Civil Rights Division’s voting section, in a separate NAACP lawsuit strongly indicated that they would.

In that statement, Neff said “employees” from the Bureau of Prisons (BOP), Drug Enforcement Administration (DEA), and Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) would monitor the polls on Tuesday. He added that “these employees are prohibited from having firearms with them, and they are prohibited from taking any action while on surveillance” – a qualification that strongly implied that the employees would be federal law enforcement agents.

Neff added that while serving as monitors, BOP, DEA and ATF employees “will not act as ‘law enforcement personnel,’ ‘law enforcement officers,’ or ‘law enforcement officers’ as commonly understood.”

At the hearing, Barragan told Walton that BOP, DEA and ATF employees would be administrative or clerical personnel and that the Civil Rights Division worked to exclude law enforcement officials from its surveillance efforts.

Walton noted that Barragan’s assertion “seemed to be an inconsistency” with Neff’s statement. He also reminded the DOJ of the dangers of making false statements in court.

“I have to hope and assume that an officer of the law will not misrepresent the reality of who these observers will be,” Walton said. “Because if there was some sort of misrepresentation – and I’m not suggesting there was – obviously there would be hell to pay.”

The question of whether federal agents will be deployed is key, as it would mark a dramatic shift from previous election monitoring efforts. Former departments used the DOJ’s election monitoring program to ensure that voters had adequate access to polls, as required by federal election laws. To this end, they sent civil attorneys or legal support staff from the voting section of the DOJ’s Civil Rights Division, not prosecutors or law enforcement agents.

President Donald Trump’s DOJ, however, sent prosecutors and a law enforcement official to monitor the primary election earlier this year.

The DOJ provided some additional details about the scope of its surveillance. Barragan said that would involve “about 900” people, about 300 more than the number of observers sent by the Biden administration during the 2024 presidential election.

When Walton asked why the surveillance program was expanded to potentially include law enforcement employees, Barragan said she would provide more details by the end of the day.

The judge ordered the DOJ to also give him more details on how the locations where the observers will be sent were determined. He seemed to fear that they could have been selected on political criteria.

“I hope that in our country it will not be the norm that places are identified as having observers,” he said.

He clearly expressed “concerns” about surveillance efforts in the context of the Trump administration’s lawsuits against the election process.

“I have concerns,” he said. “But those concerns, I don’t know if they allow me to conclude that the plaintiffs have met the heavy burden of demonstrating the potential for irreparable harm.”