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The Alamance County District Attorney’s Office dropped misdemeanor charges Wednesday against two N.C. Democratic Party volunteer election watchers who were arrested at a protest and peaceful march to the polls on Oct. 31 in Graham.
The watchers, Samson Asiyanbi and Kelly Skahan, were arrested and charged with failure to disperse, a Class 2 misdemeanor with a maximum penalty of 60 days in jail and a $1,000 fine.
“I am thankful the prosecutor took his responsibility to seek justice seriously and, in doing so, realized the case against my client should be dismissed,” Jay Ferguson, Asiyanbi’s Durham-based defense attorney, said in an email to Carolina Public Press.
Skahan described spending thousands of dollars on attorneys’ fees and travel, in addition to using several days of personal time off at her job as a labor attorney in Seattle. She will have to spend more, she said, to expunge the arrest from her record. Asiyanbi, a trial attorney for the U.S. Department of Justice, lives in Washington, D.C.
Both were in Graham on behalf of the state party in anticipation of potential disruptions to voting due to the march, according to the N.C. Democratic Party, which was angered by their arrests.
“We stand firmly against the unwarranted hostility from the police that day in Graham,” NCDP Chair Bobbie Richardson wrote in a statement to CPP.
In the end, Kevin Harrison, assistant district attorney in Alamance County, voluntarily dismissed the charges in the “interest of justice” and because “defendants were finally leaving the area at the time of arrest,” according to the court filings.
“Obviously, we proceed on the individual facts of each case, handling them according to their merits,” Harrison wrote in an email to CPP.
Cause of arrest
Oct. 31 was the last day of early voting in the North Carolina general elections. That meant it was the last day when citizens could show up to the polls, register to vote and cast a ballot.
Greg Drumwright, a reverend at a local church, organized a dual event to protest the ongoing presence of a Confederate memorial in downtown Graham, outside the historic courthouse, and to bring voters to the polling site about a block away.
The peaceful marchers stopped at the Confederate monument and held a moment of silence for eight minutes and 46 seconds, a symbolic reference to the amount of time it was believed that then-Minneapolis police officer Derek Chauvin had knelt on George Floyd’s neck, causing his death.
Shortly after, the Graham Police Department instructed the crowd, without using loudspeakers or other voice amplification tools, to disperse because traffic around downtown was backing up, according to a press conference conducted by Capt. Daniel Sisk, public information officer for the Graham Police Department.
In actions that state Attorney General Josh Stein called “troubling,” the Police Department used pepper spray, aimed both at the ground and over the protesters’ heads, to clear people from the street. Children, some of whom vomited from the irritant, and elderly people were in the crowd, according to cellphone videos and reporting by several news outlets.
“After several GPD officers were violently confronted by demonstrators, demonstrators were ordered to disperse, and Asiyanbi and (Skahan) were arrested for refusing to do so,” Sisk wrote in a statement to CPP.
Asiyanbi and Skahan were walking away at the time of their arrest, according to Harrison, who declined to prosecute the case.
“Mr. Asiyanbi violated no laws and was entirely innocent,” Ferguson wrote to CPP.
Six other individuals were arrested at the same time, including Tomas Murawski, a reporter for the weekly Alamance News whose arrest made national headlines.
Murawski’s photography was part of lawful reporting on public police activity, according to a letter by the Reporter’s Committee for Freedom of the Press signed by more than 25 press organizations. His case is not scheduled to be heard in court until May 26.
Several others, including Drumwright, were arrested later in the day. Drumwright was charged with a failure to disperse, then, several days later, was charged with felony assault on a law enforcement officer for the Oct. 31 events.
Drumwright’s attorneys called the charges “retaliation for our client’s continued advocacy in Graham,” in a press release from mid-November.
No legal protections for unofficial election watchers
Asiyanbi and Skahan were referred to the N.C. Democratic Party by Joe Biden’s presidential campaign, which coordinated with the national Democratic Party and state parties to send election watchers around the country.
Both Asiyanbi and Skahan were in Graham at the direction of the state party and had been trained by the state party in how to be an election watcher.
Skahan said that as watchers, they had two roles. The first was to help answer voter questions, such as where the polling site was or what voters needed to register to vote.
“And our other role was to document any instances of interference or intimidation of voters,” Skahan said.
Election watchers like Skahan and Asiyanbi were on the ground to collect any evidence of any alleged intimidation in case the party needed to engage in litigation or contact the board of elections.
“Ms. Skahan was not on the ground as a protester but as a trained observer for the party,” according to a letter a Democratic Party lawyer wrote to Skahan’s attorney, to be used in court.
“She continued to fulfill her duties as an outside observer by observing, monitoring and reporting events happening outside the polling place that affect voters.”
Though they were representing the party and were informally called “poll observers” in the party’s election observation program, they had no formal legal protection for being at the protest over what any other person would have.
That’s because Asiyanbi and Skahan were not poll observers in the sense covered by state law.
“The difference is that official election observers — appointed by the political parties through a statutory process — are allowed inside the voting enclosure to witness the voting process,” Pat Gannon, spokesperson for the N.C. State Board of Elections, wrote to CPP.
Out of state
In the eyes of the Graham Police Department, neither Skahan nor Asiyanbi had legal protection or special status. Sisk called them “protesters” and stressed their out-of-state home addresses in press releases and a statement to CPP.
Most of the Democratic Party’s poll observers were lawyers who volunteered their time to help out in the election, according to the state party.
As a result of the arrest and charges, Skahan has not been able to work on certain cases, as it was unclear when she would need to return to North Carolina for her court hearing. Still, in an email to CPP, her employer expressed support for her work observing the election.
Though the Hatch Act prevents federal employees from “engaging in partisan political activity while on duty,” Asiyanbi was not on duty when he was volunteering for the Democratic Party.
Because he is a career employee and not appointed, he is permitted to engage in political activity on his own time, according to Joshua Stueve, a spokesperson for the U.S. Department of Justice, and the ethics guidelines on the Department of Justice’s website.
In the end, neither Skahan nor Asiyanbi needed to appear in front of a judge to have the charges dismissed.
The change sometimes happens when the prosecuting attorney reviews material shortly before a hearing is set to begin, according to Sean Boone, the Alamance district attorney.
Disruption to voting?
After the police pepper-sprayed the protesters and closed downtown Graham due to “unlawful assembly,” Skahan attempted to make her way to the polling site on the other side of the courthouse square, she said. Though Asiyanbi was with her the entire time, Skahan was clear that she could not speak on his behalf.
Through his lawyer, Asiyanbi declined to comment for this report.
Skahan’s goal was to find out if voters were able to access the polling site despite the police closing the downtown area, she said.
She also showed bodycam footage from Graham police officers and an email from Harrison to her and Asiyanbi’s attorneys to CPP. The clips were the evidence the district attorney’s office would have used if the cases had received a hearing.
Skahan’s statements were consistent with the videos in that she repeatedly asked police officers how to get to the polling site and if it was still open. The videos did not show officers answering her questions, instead telling people to move north and east out of downtown, then to walk around to where the polling site was.
At one point, bodycam footage showed Skahan walking backward with one hand up and the other holding her phone, recording the police. Skahan was asking where she should go and why the police officer was holding pepper spray.
In another clip, an officer sprayed the ground in front of Skahan and Asiyanbi with pepper spray, instructing them and another person to clear the street. They were on the sidewalk.
The final video showed Skahan’s and Asiyanbi’s arrests.
“You did nothing but walk around,” an officer said.
“You told me to walk around,” Skahan replied.
They had walked around the square and were moving away from the police when an officer directed their arrests.
They did not make it to the polling site to see if the march or the police response had affected access to the early voting site.
“There was no interruption in voting activity,” said Kathy Holland, director of Alamance County Board of Elections.
Participants at the march also did not make it to the voting site. Skahan could not confirm whether anyone was ultimately prevented from voting.
“I would imagine getting pepper-sprayed does in fact interfere with mom’s ability to vote when their kids are, you know, choking on pepper spray,” Skahan said.