Quiet Riot: A Framework for Prosecuting the Open Carry of Firearms At Elections

Abstract

Individuals openly toting high-powered firearms are descending upon America’s polling places, vote tabulation centers, and even the private residences of election officials. While states are free to banfire arms at election facilities, few have done so. Worse yet, statutes designed to prevent voter intimidation are ineffective, as they require prosecutors to prove intent to intimidate on the part of those who open carry. While that may seem obvious, putative defendants will contend they have no intent to intimidate anyone with their open display of firepower, and instead are merely seeking to “prevent voter fraud” or to defend themselves. Consequently, voter intimidation prosecutions are rarely brought.This Article identifies an innovative strategy to combat intimidation by armed individuals at elections: the common law offense of riot. At common law, armed groups unauthorized by law were considered riots and punished as such for causing “public terror.” All but three states have either codified riot in their criminal codes or judicially adopted the common law offense. Although the statutory formulations of the crime vary, in many states, including those where there is a significant risk of election-related intimidation in upcoming elections, prosecutors could effectively deploy the law of riot against those who open carry at elections.This Article canvasses the law of riot in the fifty states, provides a roadmap for prosecuting the offense under the various formulations of the law, and arms prosecutors with a much-needed weapon to disarm those who seek to intimidate voters and election officials.