Election Subversion: What Laws Apply?

Election subversion is a complex and evolving issue that poses a significant threat to democratic self-governance. It involves various measures to change the outcome of an election, including voter suppression, election denial, disinformation, intimidation, and other legal or illegal attempts to disqualify or not count certain votes. While there is no one-size-fits-all solution, a range of federal and state laws, as well as strategic policy approaches, can be employed to protect the integrity of elections and safeguard the right to vote.

Richard L. Hasen outlines three main avenues of election subversion in the United States:

1. Disqualifying votes where a partisan body justifies changing the outcome

2. Fraudulent or suppressive election administration

3. Disrupting the voting, counting of votes, or assumption of power by the true winner

Additionally, election subversion can be understood as the exploitation of a breakdown in the rule of law to install a candidate into elected office. This can occur when subversive actors invoke legal principles to exploit processes and gain legitimization, while simultaneously seeking to exploit breakdowns in the rule of law to install their preferred candidates.

To address these threats, legal experts have proposed various approaches, including prophylactic legal reforms, altering incentives for actors, and corrective measures. Standardizing election administration procedures, ensuring a balanced distribution of authority, and depoliticizing election observation are also recommended to strengthen election integrity.

The writ of mandamus, which allows courts to compel the performance of specific actions by government officials, has been suggested as a tool to address election subversion by ordering election officials to certify and transmit election results.

Ultimately, the complex nature of election subversion requires a multifaceted and interdisciplinary response to ensure free and fair elections.

Laws protecting voters and election workers from intimidation

Federal and state laws in the US prohibit the intimidation of voters and election workers. Intimidation can take many forms, including physical threats, improper surveillance, and threats of criminal prosecution. Intimidation of voters, volunteers assisting voters, and election workers is illegal under federal law, and these protections apply throughout the election lifecycle.

Federal Laws Protecting Against Intimidation

Section 11(b) of the Voting Rights Act and Section 131(b) of the Civil Rights Act of 1957 prohibit "intimidation", "threats", or "coercion" against a person "for voting or attempting to vote" or "for urging or aiding any person to vote or attempt to vote". No showing of intent to intimidate is required so long as the behaviour has the effect of intimidating voters.

Section 1 of the Enforcement Act of 1871 (coined the Ku Klux Klan Act) prohibits any state official from violating the constitutional rights of any person, including the right to vote, the right to equal protection, and the right to due process.

State Laws Prohibiting Intimidation

Every state prohibits voter intimidation, and some provide protections that are even stronger than federal law, such as those provided by state voting rights acts in Virginia and Connecticut.

Consequences of Intimidation

Intimidators face both civil and criminal consequences. Federal and state prosecutors may criminally charge individuals who attempt or partake in intimidating conduct, and state attorneys general may also seek civil sanctions against such individuals.

Election certification processes and guardrails

Election certification is the final step in the election process, and it is a legal duty that local officials are required by state law to complete. Certification marks the end of the local vote-counting process and allows state officials to begin the next phase of verifying election results, including recounts, audits, and election contests as provided by state law.

Certification is a legal duty that local officials are required by state law to complete. Certification marks the end of the local vote-counting process and allows state officials to begin the next phase of verifying election results, including recounts, audits, and election contests as provided by state law. There are legal protections in place against attempts to interfere with election results. Election deniers have targeted certification as a way to interfere with election results, but there are legal protections in place against such efforts.

Certification is a critical step in the election process, and it is important to have safeguards in place to ensure that it is carried out accurately and transparently. One way to ensure the integrity of the certification process is to have clear and mandatory responsibilities for election officials involved in the certification process. These responsibilities may include verifying the accuracy of vote counts, resolving any discrepancies or disputes, and providing a final certification of the election results.

Another way to ensure the integrity of the certification process is to have oversight and accountability mechanisms in place. This could include having multiple levels of review, such as state or federal oversight of local certification processes, or independent audit and verification procedures. Additionally, there should be consequences for election officials who fail to carry out their duties properly, such as legal or disciplinary action.

Finally, it is important to have transparent and accessible information about the certification process, including the procedures followed, the results, and any discrepancies or disputes that arose during the process. This information should be readily available to the public and other stakeholders to ensure trust and confidence in the election results.

Election observers rules and constraints

Election observers play a crucial role in ensuring transparent and fair elections. However, their actions are governed by specific rules and constraints to prevent any interference or disruption to the electoral process. Here are some key rules and constraints that apply to election observers:

• Legal Framework: Election observers must operate within the boundaries set by federal, state, and local laws. These laws outline the rights and responsibilities of election observers and ensure that they do not engage in any illegal activities.
• Non-Partisan Role: Election observers are expected to maintain neutrality and impartiality. They should not engage in any partisan activities or promote specific candidates or political parties. Their role is solely to observe and ensure the integrity of the electoral process.
• Code of Conduct: Election management bodies typically establish a code of conduct for election observers. This code of conduct outlines the expected behaviour, including dress code, interaction with voters and election officials, and restrictions on the use of electronic devices.
• Accreditation and Training: Election observers usually undergo an accreditation process, where they are trained on the applicable laws, regulations, and codes of conduct. This training ensures that they understand their roles and responsibilities and can carry out their duties effectively and impartially.
• Restricted Areas: Election observers are typically granted access to specific areas within polling stations or vote-counting centres. They may not be permitted to enter restricted areas, such as areas where ballots are stored or where sensitive information is processed.
• Observation Without Interference: Election observers are allowed to observe the electoral process but must not interfere with the voting or counting procedures. They should maintain a reasonable distance from voters and election officials to avoid any disruption or intimidation.
• Reporting and Documentation: Election observers may be required to submit reports or documentation of their observations. These reports should be factual and unbiased, providing a transparent account of the electoral process.
• Prohibited Activities: Election observers are generally prohibited from engaging in certain activities, such as campaigning, distributing campaign materials, or influencing voters. They must also refrain from any form of intimidation, harassment, or obstruction of the electoral process.
• Consequences for Misconduct: Election observers who violate the established rules and guidelines may face consequences. These consequences can include removal from the observation site, revocation of accreditation, or legal sanctions, depending on the severity of the misconduct.

Limits on voter eligibility challenges

Most states allow residents to challenge the eligibility of other voters, either before or during an election. These challenges are often based on unreliable data pulled from the internet. However, federal and state laws protect voters from unfounded challenges to their eligibility. These include:

• Evidentiary requirements for challenges
• Prohibitions against frivolous challenges
• Constraints on removing voters facing residency-based challenges

In Florida, for example, challenges must be in writing and signed under penalty of perjury. A challenged voter has the right to cast a provisional ballot and is presumed eligible unless there is sufficient evidence to the contrary.

In Pennsylvania, pre-election challenges to a voter's registration must be made by written affidavit. A challenged voter must be given the opportunity to respond and should do so in a sworn or affirmed written statement with any supporting evidence attached.

Poll worker rules and constraints

Poll workers are an essential part of the election process, and there are several rules and constraints that govern their conduct.

Poll workers are responsible for overseeing election procedures to ensure fairness for their respective parties. However, they must refrain from interfering in the electoral process except to report any concerns to polling place authorities and party officials. Since 2021, when some states changed their laws regarding poll watchers, election workers have reported numerous incidents of intrusive or intimidating behaviour by poll watchers.

Different state laws spell out clear procedures for who can and cannot monitor elections, limit the actions of poll watchers, and authorise the removal of disruptive individuals serving as poll watchers. Additionally, anti-intimidation laws protect voters and poll workers from any attempts at intimidation by poll watchers.

Poll workers are trained to catch and fix errors quickly, and provisional ballots are an option for voters if the issue cannot be remedied quickly. State laws also provide mechanisms throughout the canvassing process (and even after certification) to challenge results or correct errors—whether the result of benign accident or malicious interference. These safeguards vary by state but often include ballot curing, reporting unlawful activity to law enforcement, recounts, audits, and election contests.

Furthermore, knowingly spreading false information about election workers can result in civil liabilities and defamation lawsuits. Many states have enacted new laws to provide additional protections for election officials and poll workers, including stiffer penalties for intimidation and safeguards against "doxxing".

Frequently asked questions